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.begin insert If the sentence is not recalled, existing law permits the defendant to submit another petition for recall when the defendant has been committed to the custody of the department for at least 20 years, and if the sentence is not recalled at that hearing, existing law allows the defendant to file another petition after having served 24 years.end insert
This bill would instead authorize those prisoners to submit the petition for recall and resentencing after he or she has beenbegin delete committed to the custody of the Department of Corrections and Rehabilitationend deletebegin insert
incarceratedend insert for 15 years.begin insert The bill would allow a defendant whose sentence was recalled, but who was resentenced to life without the possibility of parole, to make additional petitions as specified above.end insert 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
P3 1remaining term of commitment and a release date that would allow
2him or her adequate time to complete the program.
3(3) In any case in which the punishment prescribed by statute
4for a person convicted of a public offense is a term of imprisonment
5in the state prison or a term pursuant to subdivision (h) of any
6specification of three time
periods, the court shall sentence the
7defendant to one of the terms of imprisonment specified unless
8the convicted person is given any other disposition provided by
9law, including a fine, jail, probation, or the suspension of
10imposition or execution of sentence or is sentenced pursuant to
11subdivision (b) of Section 1168 because he or she had committed
12his or her crime prior to July 1, 1977. In sentencing the convicted
13person, the court shall apply the sentencing rules of the Judicial
14Council. The court, unless it determines that there are
15circumstances in mitigation of the punishment prescribed, shall
16also impose any other term that it is required by law to impose as
17an additional term. Nothing in this article shall affect any provision
18of law that imposes the death penalty, that authorizes or restricts
19the granting of probation or suspending the execution or imposition
20of sentence, or expressly
provides for imprisonment in the state
21prison for life, except as provided in paragraph (2) of subdivision
22(d). In any case in which the amount of preimprisonment credit
23under Section 2900.5 or any other law is equal to or exceeds any
24
sentence imposed pursuant to this chapter, except for the remaining
25portion of mandatory supervision pursuant to subparagraph (B) of
26paragraph (5) of subdivision (h), the entire sentence shall be
27deemed to have been served, except for the remaining period of
28mandatory supervision, and the defendant shall not be actually
29delivered to the custody of the secretary or to the custody of the
30county correctional administrator. The court shall advise the
31defendant that he or she shall serve an applicable period of parole,
32postrelease community supervision, or mandatory supervision,
33and order the defendant to report to the parole or probation office
34closest to the defendant’s last legal residence, unless the in-custody
35credits equal the total sentence, including both confinement time
36and the period of parole, postrelease community supervision, or
37mandatory supervision. The sentence shall be deemed
a separate
38prior prison term or a sentence of imprisonment in a county jail
39under subdivision (h) for purposes of Section 667.5, and a copy
P4 1of the judgment and other necessary documentation shall be
2forwarded to the secretary.
3(b) When a judgment of imprisonment is to be imposed and the
4statute specifies three possible terms, the choice of the appropriate
5term shall rest within the sound discretion of the court. At least
6four days prior to the time set for imposition of judgment, either
7party or the victim, or the family of the victim if the victim is
8deceased, may submit a statement in aggravation or mitigation. In
9determining the appropriate term, the court may consider the record
10in the case, the probation officer’s report, other reports, including
11reports received pursuant to Section 1203.03, and statements in
12aggravation or
mitigation submitted by the prosecution, the
13defendant, or the victim, or the family of the victim if the victim
14is deceased, and any further evidence introduced at the sentencing
15hearing. The court shall select the term which, in the court’s
16discretion, best serves the interests of justice. The court shall set
17forth on the record the reasons for imposing the term selected and
18the court may not impose an upper term by using the fact of any
19enhancement upon which sentence is imposed under any provision
20of law. A term of imprisonment shall not be specified if imposition
21of sentence is suspended.
22(c) The court shall state the reasons for its sentence choice on
23the record at the time of sentencing. The court shall also inform
24the defendant that as part of the sentence after expiration of the
25term he or she may be on parole for a period as provided in
Section
263000 or 3000.08 or postrelease community supervision for a period
27as provided in Section 3451.
28(d) (1) When a defendant subject to this section or subdivision
29(b) of Section 1168 has been sentenced to be imprisoned in the
30state prison or county jail pursuant to subdivision (h) and has been
31committed to the custody of the secretary or the county correctional
32administrator, the court may, within 120 days of the date of
33commitment on its own motion, or at any time upon the
34recommendation of the secretary or the Board of Parole Hearings
35in the case of state prison inmates, or the county correctional
36administrator in the case of county jail inmates, recall the sentence
37and commitment previously ordered and resentence the defendant
38in the same manner as if he or she had not previously been
39sentenced, provided
the new sentence, if any, is no greater than
40the initial sentence. The court resentencing under this subdivision
P5 1shall apply the sentencing rules of the Judicial Council so as to
2eliminate disparity of sentences and to promote uniformity of
3sentencing. Credit shall be given for time served.
4(2) (A) (i) When a defendant who was under 18 years of age
5at the time of the commission of the offense for which the
6defendant was sentenced to imprisonment for life without the
7possibility of parole has beenbegin delete committed to the custody of the begin insert incarceratedend insert for at least 15 years, the defendant may
8departmentend delete
9submit to the sentencing court a
petition for recall and resentencing.
10(ii) Notwithstanding clause (i), this paragraph shall not apply
11to defendants sentenced to life without parole for an offense where
12it was pled and proved that the defendant tortured, as described in
13Section 206, his or her victim or the victim was a public safety
14official, including any law enforcement personnel mentioned in
15Chapter 4.5 (commencing with Section 830) of Title 3, or any
16firefighter as described in Section 245.1, as well as any other officer
17in any segment of law enforcement who is employed by the federal
18government, the state, or any of its political subdivisions.
19(B) The defendant shall file the original petition with the
20sentencing court. A copy of the petition shall be served on the
21agency that prosecuted the case. The petition
shall include the
22defendant’s statement that he or she was under 18 years of age at
23the time of the crime and was sentenced to life in prison without
24the possibility of parole, the defendant’s statement describing his
25or her remorse and work towards rehabilitation, and the defendant’s
26statement that one of the following is true:
27(i) The defendant was convicted pursuant to felony murder or
28aiding and abetting murder provisions of law.
29(ii) The defendant does not have juvenile felony adjudications
30for assault or other felony crimes with a significant potential for
31personal harm to victims prior to the offense for which the sentence
32is being considered for recall.
33(iii) The defendant committed the offense with at least one
adult
34codefendant.
35(iv) The defendant has performed acts that tend to indicate
36rehabilitation or the potential for rehabilitation, including, but not
37limited to, availing himself or herself of rehabilitative, educational,
38or vocational programs, if those programs have been available at
39his or her classification level and facility, using self-study for
40self-improvement, or showing evidence of remorse.
P6 1(C) If any of the information required in subparagraph (B) is
2missing from the petition, or if proof of service on the prosecuting
3agency is not provided, the court shall return the petition to the
4defendant and advise the defendant that the matter cannot be
5considered without the missing information.
6(D) A reply to
the petition, if any, shall be filed with the court
7within 60 days of the date on which the prosecuting agency was
8served with the petition, unless a continuance is granted for good
9cause.
10(E) If the court finds by a preponderance of the evidence that
11one or more of the statements specified in clauses (i) to (iv),
12inclusive, of subparagraph (B) is true, the court shall recall the
13sentence and commitment previously ordered and hold a hearing
14to resentence the defendant in the same manner as if the defendant
15had not previously been sentenced, provided that the new sentence,
16if any, is not greater than the initial sentence. Victims, or victim
17family members if the victim is deceased, shall retain the rights to
18participate in the hearing.
19(F) The factors that the court may consider
when determining
20whether to resentence the defendant to a term of imprisonment
21with the possibility of parole include, but are not limited to, the
22following:
23(i) The defendant was convicted pursuant to felony murder or
24
aiding and abetting murder provisions of law.
25(ii) The defendant does not have juvenile felony adjudications
26for assault or other felony crimes with a significant potential for
27personal harm to victims prior to the offense for which the
28defendant was sentenced to life without the possibility of parole.
29(iii) The defendant committed the offense with at least one adult
30codefendant.
31(iv) Prior to the offense for which the
defendant was sentenced
32to life without the possibility of parole, the defendant had
33insufficient adult support or supervision and had suffered from
34psychological or physical trauma, or significant stress.
35(v) The defendant suffers from cognitive limitations due to
36mental illness, developmental disabilities, or other factors that did
37not constitute a defense, but influenced the defendant’s
38
involvement in the offense.
39(vi) The defendant has performed acts that tend to indicate
40rehabilitation or the potential for rehabilitation, including, but not
P7 1limited to, availing himself or herself of rehabilitative, educational,
2or vocational programs, if those programs have been available at
3his or her classification level and facility, using self-study for
4self-improvement, or showing evidence of remorse.
5(vii) The defendant has maintained family ties or connections
6with others through letter writing, calls, or visits, or has eliminated
7contact with individuals outside of prison who are currently
8involved with crime.
9(viii) The defendant has had no disciplinary actions for violent
10activities in the
last five years in which the defendant was
11determined to be the aggressor.
12(G) The court shall have the discretion to resentence the
13defendant in the same manner as if the defendant had not
14previously been sentenced, provided that the new sentence, if any,
15is not greater than the initial sentence. The discretion of the court
16shall be exercised in consideration of the criteria in subparagraph
17(F). Victims, or victim family members if the victim is deceased,
18shall be notified of the resentencing hearing and shall retain their
19rights to participate in the hearing.
20(H) If the sentence is not recalled or the defendant is resentenced
21to imprisonment for life without the possibility of parole, the
22defendant may submit another petition for recall and resentencing
23to the sentencing court when
the defendant has been committed
24to the custody of the department for at least 20 years. If the
25sentence is not recalled or the defendant is resentenced to
26imprisonment for life without the possibility of parole under that
27petition, the defendant may file another petition after havingbegin delete been begin insert servedend insert 24 years.
28committed to the custody of the department forend delete
29The final petition may be submitted, and the response to that
30petition shall be determined, during the 25th year of the defendant’s
31
begin delete commitment to the department.end deletebegin insert sentence.end insert
32(I) In addition to the criteria in subparagraph (F), the court may
33consider any other criteria that the court deems relevant to its
34decision, so long as the court identifies them on the record,
35provides a statement of reasons for adopting them, and states why
36the defendant does or does not satisfy the criteria.
37(J) This subdivision shall have retroactive application.
38(K) Nothing in this paragraph is intended to diminish or abrogate
39any rights or remedies otherwise available to the defendant.
P8 1(e) (1) Notwithstanding any other law and consistent with
2paragraph (1) of subdivision (a), if the secretary or the Board of
3Parole Hearings or both
determine that a prisoner satisfies the
4criteria set forth in paragraph (2), the secretary or the board may
5recommend to the court that the prisoner’s sentence be recalled.
6(2) The court shall have the discretion to resentence or recall if
7the court finds that the facts described in subparagraphs (A) and
8(B) or subparagraphs (B) and (C) exist:
9(A) The prisoner is terminally ill with an incurable condition
10caused by an illness or disease that would produce death within
11six months, as determined by a physician employed by the
12department.
13(B) The conditions under which the prisoner would be released
14or receive treatment do not pose a threat to public safety.
15(C) The prisoner is permanently medically incapacitated with
16a medical condition that renders him or her permanently unable
17to perform activities of basic daily living, and results in the prisoner
18requiring 24-hour total care, including, but not limited to, coma,
19persistent vegetative state, brain death, ventilator-dependency, loss
20of control of muscular or neurological function, and that
21incapacitation did not exist at the time of the original sentencing.
22The Board of Parole Hearings shall make findings pursuant to
23this subdivision before making a recommendation for resentence
24or recall to the court. This subdivision does not apply to a prisoner
25sentenced to death or a term of life without the possibility of parole.
26(3) Within 10 days of receipt of a positive recommendation by
27the secretary or
the board, the court shall hold a hearing to consider
28whether the prisoner’s sentence should be recalled.
29(4) Any physician employed by the department who determines
30that a prisoner has six months or less to live shall notify the chief
31medical officer of the prognosis. If the chief medical officer
32concurs with the prognosis, he or she shall notify the warden.
33Within 48 hours of receiving notification, the warden or the
34warden’s representative shall notify the prisoner of the recall and
35resentencing procedures, and shall arrange for the prisoner to
36designate a family member or other outside agent to be notified
37as to the prisoner’s medical condition and prognosis, and as to the
38recall and resentencing procedures. If the inmate is deemed
39mentally unfit, the warden or the warden’s representative shall
P9 1contact the inmate’s emergency contact and
provide the information
2described in paragraph (2).
3(5) The warden or the warden’s representative shall provide the
4prisoner and his or her family member, agent, or emergency
5contact, as described in paragraph (4), updated information
6throughout the recall and resentencing process with regard to the
7prisoner’s medical condition and the status of the prisoner’s recall
8and resentencing proceedings.
9(6) Notwithstanding any other provisions of this section, the
10prisoner or his or her family member or designee may
11independently request consideration for recall and resentencing
12by contacting the chief medical officer at the prison or the
13secretary. Upon receipt of the request, the chief medical officer
14and the warden or the warden’s representative shall follow the
15procedures
described in paragraph (4). If the secretary determines
16that the prisoner satisfies the criteria set forth in paragraph (2), the
17secretary or board may recommend to the court that the prisoner’s
18sentence be recalled. The secretary shall submit a recommendation
19for release within 30 days in the case of inmates sentenced to
20determinate terms and, in the case of inmates sentenced to
21indeterminate terms, the secretary shall make a recommendation
22to the Board of Parole Hearings with respect to the inmates who
23have applied under this section. The board shall consider this
24
information and make an independent judgment pursuant to
25paragraph (2) and make findings related thereto before rejecting
26the request or making a recommendation to the court. This action
27shall be taken at the next lawfully noticed board meeting.
28(7) Any recommendation for recall submitted to the court by
29the secretary or the Board of Parole Hearings shall include one or
30more medical evaluations, a postrelease plan, and findings pursuant
31to paragraph (2).
32(8) If possible, the matter shall be heard before the same judge
33of the court who sentenced the prisoner.
34(9) If the court grants the recall and resentencing application,
35the prisoner shall be released by the department within 48 hours
36of receipt of the
court’s order, unless a longer time period is agreed
37to by the inmate. At the time of release, the warden or the warden’s
38representative shall ensure that the prisoner has each of the
39following in his or her possession: a discharge medical summary,
40full medical records, state identification, parole or postrelease
P10 1community supervision medications, and all property belonging
2to the prisoner. After discharge, any additional records shall be
3sent to the prisoner’s forwarding address.
4(10) The secretary shall issue a directive to medical and
5correctional staff employed by the department that details the
6guidelines and procedures for initiating a recall and resentencing
7procedure. The directive shall clearly state that any prisoner who
8is given a prognosis of six months or less to live is eligible for
9recall and resentencing consideration,
and that recall and
10resentencing procedures shall be initiated upon that prognosis.
11(11) The provisions of this subdivision shall be available to an
12inmate who is sentenced to a county jail pursuant to subdivision
13(h). For purposes of those inmates, “secretary” or “warden” shall
14mean the county correctional administrator and “chief medical
15officer” shall mean a physician designated by the county
16correctional administrator for this purpose.
17(f) Notwithstanding any other provision of this section, for
18purposes of paragraph (3) of subdivision (h), any allegation that
19a defendant is eligible for state prison due to a prior or current
20conviction, sentence enhancement, or because he or she is required
21to register as a sex offender shall not be subject to dismissal
22pursuant to Section
1385.
23(g) A sentence to state prison for a determinate term for which
24only one term is specified, is a sentence to state prison under this
25section.
26(h) (1) Except as provided in paragraph (3), a felony punishable
27pursuant to this subdivision where the term is not specified in the
28underlying offense shall be punishable by a term of imprisonment
29in a county jail for 16 months, or two or three years.
30(2) Except as provided in paragraph (3), a felony punishable
31pursuant to this subdivision shall be punishable by imprisonment
32in a county jail for the term described in the underlying offense.
33(3) Notwithstanding paragraphs (1) and (2), where the
defendant
34(A) has a prior or current felony conviction for a serious felony
35described in subdivision (c) of Section 1192.7 or a prior or current
36conviction for a violent felony described in subdivision (c) of
37Section 667.5, (B) has a prior felony conviction in another
38jurisdiction for an offense that has all the elements of a serious
39felony described in subdivision (c) of Section 1192.7 or a violent
40felony described in subdivision (c) of Section 667.5, (C) is required
P11 1to register as a sex offender pursuant to Chapter 5.5 (commencing
2with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
3and as part of the sentence an enhancement pursuant to Section
4186.11 is imposed, an executed sentence for a felony punishable
5pursuant to this subdivision shall be served in state prison.
6(4) Nothing in this subdivision shall be
construed to prevent
7other dispositions authorized by law, including pretrial diversion,
8deferred entry of judgment, or an order granting probation pursuant
9to Section 1203.1.
10(5) (A) Unless the court finds that, in the interests of justice, it
11is not appropriate in a particular case, the court, when imposing a
12sentence pursuant to paragraph (1) or (2), shall suspend execution
13of a concluding portion of the term for a period selected at the
14court’s discretion.
15(B) The portion of a defendant’s sentenced term that is
16suspended pursuant to this paragraph shall be known as mandatory
17supervision, and, unless otherwise ordered by the court, shall
18commence upon release from physical custody or an alternative
19custody program, whichever is later. During the period of
20mandatory
supervision, the defendant shall be supervised by the
21county probation officer in accordance with the terms, conditions,
22and procedures generally applicable to persons placed on probation,
23for the remaining unserved portion of the sentence imposed by the
24court. The period of supervision shall be mandatory, and may not
25be earlier terminated except by court order. Any proceeding to
26revoke or modify mandatory supervision under this subparagraph
27shall be conducted pursuant to either subdivisions (a) and (b) of
28Section 1203.2 or Section 1203.3. During the period when the
29defendant is under that supervision, unless in actual custody related
30to the sentence imposed by the court, the defendant shall be entitled
31to only actual time credit against the term of imprisonment imposed
32by the court. Any time period which is suspended because a person
33has absconded shall not be credited toward the period of
34supervision.
35(6) The sentencing changes made by the act that added this
36subdivision shall be applied prospectively to any person sentenced
37on or after October 1, 2011.
38(7) The sentencing changes made to paragraph (5) by the act
39that added this paragraph shall become effective and operative on
P12 1January 1, 2015, and shall be applied prospectively to any person
2sentenced on or after January 1, 2015.
3(i) This section shall remain in effect only until January 1, 2017,
4and as of that date is repealed, unless a later enacted statute, that
5is enacted before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
72 of Chapter 378 of the Statutes of 2015, is amended to read:
(a) (1) The Legislature finds and declares that the
9purpose of imprisonment for crime is punishment. This purpose
10is best served by terms proportionate to the seriousness of the
11offense with provision for uniformity in the sentences of offenders
12committing the same offense under similar circumstances. The
13Legislature further finds and declares that the elimination of
14disparity and the provision of uniformity of sentences can best be
15achieved by determinate sentences fixed by statute in proportion
16to the seriousness of the offense as determined by the Legislature
17to be imposed by the court with specified discretion.
18(2) Notwithstanding paragraph (1), the Legislature further
finds
19and declares that programs should be available for inmates,
20
including, but not limited to, educational programs, that are
21designed to prepare nonviolent felony offenders for successful
22reentry into the community. The Legislature encourages the
23development of policies and programs designed to educate and
24rehabilitate nonviolent felony offenders. In implementing this
25section, the Department of Corrections and Rehabilitation is
26encouraged to give priority enrollment in programs to promote
27successful return to the community to an inmate with a short
28remaining term of commitment and a release date that would allow
29him or her adequate time to complete the program.
30(3) In any case in which the punishment prescribed by statute
31for a person convicted of a public offense is a term of imprisonment
32in the state prison, or a term pursuant to subdivision (h), of any
33specification of three time
periods, the court shall sentence the
34defendant to one of the terms of imprisonment specified unless
35the convicted person is given any other disposition provided by
36law, including a fine, jail, probation, or the suspension of
37imposition or execution of sentence or is sentenced pursuant to
38subdivision (b) of Section 1168 because he or she had committed
39his or her crime prior to July 1, 1977. In sentencing the convicted
40person, the court shall apply the sentencing rules of the Judicial
P13 1Council. The court, unless it determines that there are
2circumstances in mitigation of the punishment prescribed, shall
3also impose any other term that it is required by law to impose as
4an additional term. Nothing in this article shall affect any provision
5of law that imposes the death penalty, that authorizes or restricts
6the granting of probation or suspending the execution or imposition
7of sentence, or
expressly provides for imprisonment in the state
8prison for life, except as provided in paragraph (2) of subdivision
9(d). In any case in which the amount of preimprisonment credit
10under Section 2900.5 or any other provision of law is equal to or
11
exceeds any sentence imposed pursuant to this chapter, except for
12a remaining portion of mandatory supervision imposed pursuant
13to subparagraph (B) of paragraph (5) of subdivision (h), the entire
14sentence shall be deemed to have been served, except for the
15remaining period of mandatory supervision, and the defendant
16shall not be actually delivered to the custody of the secretary or
17the county correctional administrator. The court shall advise the
18defendant that he or she shall serve an applicable period of parole,
19postrelease community supervision, or mandatory supervision and
20order the defendant to report to the parole or probation office
21closest to the defendant’s last legal residence, unless the in-custody
22credits equal the total sentence, including both confinement time
23and the period of parole, postrelease community supervision, or
24mandatory supervision. The sentence shall be deemed a
separate
25prior prison term or a sentence of imprisonment in a county jail
26under subdivision (h) for purposes of Section 667.5, and a copy
27of the judgment and other necessary documentation shall be
28forwarded to the secretary.
29(b) When a judgment of imprisonment is to be imposed and the
30statute specifies three possible terms, the court shall order
31imposition of the middle term, unless there are circumstances in
32aggravation or mitigation of the crime. At least four days prior to
33the time set for imposition of judgment, either party or the victim,
34or the family of the victim if the victim is deceased, may submit
35a statement in aggravation or mitigation to dispute facts in the
36record or the probation officer’s report, or to present additional
37facts. In determining whether there are circumstances that justify
38imposition of the upper or
lower term, the court may consider the
39record in the case, the probation officer’s report, other reports,
40including reports received pursuant to Section 1203.03, and
P14 1statements in aggravation or mitigation submitted by the
2prosecution, the defendant, or the victim, or the family of the victim
3if the victim is deceased, and any further evidence introduced at
4the sentencing hearing. The court shall set forth on the record the
5facts and reasons for imposing the upper or lower term. The court
6may not impose an upper term by using the fact of any
7enhancement upon which sentence is imposed under any provision
8of law. A term of imprisonment shall not be specified if imposition
9of sentence is suspended.
10(c) The court shall state the reasons for its sentence choice on
11the record at the time of sentencing. The court shall also inform
12the
defendant that as part of the sentence after expiration of the
13term he or she may be on parole for a period as provided in Section
143000 or 3000.08 or postrelease community supervision for a period
15as provided in Section 3451.
16(d) (1) When a defendant subject to this section or subdivision
17(b) of Section 1168 has been sentenced to be imprisoned in the
18state prison or county jail pursuant to subdivision (h) and has been
19committed to the custody of the secretary or the county correctional
20administrator, the court may, within 120 days of the date of
21commitment on its own motion, or at any time upon the
22recommendation of the secretary or the Board of Parole Hearings
23in the case of state prison inmates, or the county correctional
24administrator in the case of county jail inmates, recall the sentence
25and commitment previously
ordered and resentence the defendant
26in the same manner as if he or she had not previously been
27sentenced, provided the new sentence, if any, is no greater than
28the initial sentence. The court resentencing under this subdivision
29shall apply the sentencing rules of the Judicial Council so as to
30eliminate disparity of sentences and to promote uniformity of
31sentencing. Credit shall be given for time served.
32(2) (A) (i) When a defendant who was under 18 years of age
33at the time of the commission of the offense for which the
34defendant was sentenced to imprisonment for life without the
35possibility of parole has beenbegin delete committed to the custody of the begin insert
incarceratedend insert for at least 15 years, the defendant may
36departmentend delete
37submit to the sentencing court a petition for recall and resentencing.
38(ii) Notwithstanding clause (i), this paragraph shall not apply
39to defendants sentenced to life without parole for an offense where
40it was pled and proved that the defendant tortured, as described in
P15 1Section 206, his or her victim or the victim was a public safety
2official, including any law enforcement personnel mentioned in
3Chapter 4.5 (commencing with Section 830) of Title 3, or any
4firefighter as described in Section 245.1, as well as any other officer
5in any segment of law enforcement who is employed by the federal
6government, the state, or any of its political subdivisions.
7(B) The defendant shall file the original
petition with the
8sentencing court. A copy of the petition shall be served on the
9agency that prosecuted the case. The petition shall include the
10defendant’s statement that he or she was under 18 years of age at
11the time of the crime and was sentenced to life in prison without
12the possibility of parole, the defendant’s statement describing his
13or her remorse and work towards rehabilitation, and the defendant’s
14statement that one of the following is true:
15(i) The defendant was convicted pursuant to felony murder or
16aiding and abetting murder provisions of law.
17(ii) The defendant does not have juvenile felony adjudications
18for assault or other felony crimes with a significant potential for
19personal harm to victims prior to the offense for which the sentence
20is being considered for
recall.
21(iii) The defendant committed the offense with at least one adult
22codefendant.
23(iv) The defendant has performed acts that tend to indicate
24rehabilitation or the potential for rehabilitation, including, but not
25limited to, availing himself or herself of rehabilitative, educational,
26or vocational programs, if those programs have been available at
27his or her classification level and facility, using self-study for
28
self-improvement, or showing evidence of remorse.
29(C) If any of the information required in subparagraph (B) is
30missing from the petition, or if proof of service on the prosecuting
31agency is not provided, the court shall return the petition to the
32defendant and advise the defendant that the matter cannot be
33considered without the missing information.
34(D) A reply to the petition, if any, shall be filed with the court
35within 60 days of the date on which the prosecuting agency was
36served with the petition, unless a continuance is granted for good
37cause.
38(E) If the court finds by a preponderance of the evidence that
39one or more of the statements specified in clauses (i) to (iv),
40inclusive, of subparagraph (B)
is true, the court shall recall the
P16 1sentence and commitment previously ordered and hold a hearing
2to resentence the defendant in the same manner as if the defendant
3had not previously been sentenced, provided that the new sentence,
4if any, is not greater than the initial sentence. Victims, or victim
5family members if the victim is deceased, shall retain the rights to
6participate in the hearing.
7(F) The factors that the court may consider when determining
8whether to resentence the defendant to a term of imprisonment
9with the possibility of parole include, but are not limited to, the
10following:
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
16defendant was sentenced to life without the possibility of parole.
17(iii) The defendant committed the offense with at least one adult
18codefendant.
19(iv) Prior to the offense for which the defendant was sentenced
20to life without the possibility of parole, the defendant had
21insufficient adult support or supervision and had suffered from
22psychological or physical trauma, or significant stress.
23(v) The defendant suffers from cognitive limitations due to
24mental illness, developmental disabilities, or other factors that did
25not constitute a
defense, but influenced the defendant’s
26involvement in the offense.
27(vi) The defendant has performed acts that tend to indicate
28rehabilitation or the potential for rehabilitation, including, but not
29limited to, availing himself or herself of rehabilitative, educational,
30or vocational programs, if those programs have been available at
31his or her classification level and facility, using self-study for
32self-improvement, or showing evidence of remorse.
33(vii) The defendant has maintained family ties or connections
34with others through letter writing, calls, or visits, or has eliminated
35contact with individuals outside of prison who are currently
36involved with crime.
37(viii) The defendant has had no disciplinary actions for
violent
38activities in the last five years in which the defendant was
39determined to be the aggressor.
P17 1(G) The court shall have the discretion to resentence the
2defendant in the same manner as if the defendant had not
3previously been sentenced, provided that the new sentence, if any,
4is not greater than the initial sentence. The discretion of the court
5shall be exercised in consideration of the criteria in subparagraph
6
(F). Victims, or victim family members if the victim is deceased,
7shall be notified of the resentencing hearing and shall retain their
8rights to participate in the hearing.
9(H) If the sentence is not recalled or the defendant is resentenced
10to imprisonment for life without the possibility of parole, the
11defendant may submit another petition for recall and resentencing
12to the sentencing court when the defendant has been committed
13to the custody of the department for at least 20 years. If the
14sentence is not recalled or the defendant is resentenced to
15imprisonment for life without the possibility of parole under that
16petition, the defendant may file another petition after havingbegin delete been begin insert
servedend insert 24 years.
17committed to the custody of the department forend delete
18The final petition may be submitted, and the response to that
19petition shall be determined, during the 25th year of the defendant’s
20
begin delete commitment to the department.end deletebegin insert sentence.end insert
21(I) In addition to the criteria in subparagraph (F), the court may
22consider any other criteria that the court deems relevant to its
23decision, so long as the court identifies them on the record,
24provides a statement of reasons for adopting them, and states why
25the defendant does or does not satisfy the criteria.
26(J) This subdivision shall have retroactive application.
27(K) Nothing in this paragraph is intended to diminish or abrogate
28any rights or remedies otherwise available to the defendant.
29(e) (1) Notwithstanding any other law and consistent with
30paragraph (1) of subdivision (a), if the secretary or the Board of
31Parole Hearings or both determine that a prisoner satisfies the
32criteria set forth in paragraph (2), the secretary or the board may
33recommend to the court that the prisoner’s sentence be recalled.
34(2) The court shall have the discretion to resentence or recall if
35the court finds that the facts described in subparagraphs (A) and
36(B) or subparagraphs (B) and (C) exist:
37(A) The prisoner is
terminally ill with an incurable condition
38caused by an illness or disease that would produce death within
39six months, as determined by a physician employed by the
40department.
P18 1(B) The conditions under which the prisoner would be released
2or receive treatment do not pose a threat to public safety.
3(C) The prisoner is permanently medically incapacitated with
4a medical condition that renders him or her permanently unable
5to perform activities of basic daily living, and results in the prisoner
6requiring 24-hour total care, including, but not limited to, coma,
7persistent vegetative state, brain death, ventilator-dependency, loss
8of control of muscular or neurological function, and that
9incapacitation did not exist at the time of the original sentencing.
10The Board of Parole Hearings shall make findings pursuant to
11this subdivision before making a recommendation for resentence
12or recall to the court. This subdivision does not apply to a prisoner
13sentenced to death or a term of life without the possibility of parole.
14(3) Within 10 days of receipt of a positive recommendation by
15the secretary or the board, the court shall hold a hearing to consider
16whether the prisoner’s sentence should be recalled.
17(4) Any physician employed by the department who determines
18that a prisoner has six months or less to live shall notify the chief
19medical officer of the prognosis. If the chief medical officer
20concurs with the prognosis, he or she shall notify the warden.
21Within 48 hours of receiving notification, the
warden or the
22warden’s representative shall notify the prisoner of the recall and
23resentencing procedures, and shall arrange for the prisoner to
24designate a family member or other outside agent to be notified
25as to the prisoner’s medical condition and prognosis, and as to the
26recall and resentencing procedures. If the inmate is deemed
27mentally unfit, the warden or the warden’s representative shall
28contact the inmate’s emergency contact and provide the information
29described in paragraph (2).
30(5) The warden or the warden’s representative shall provide the
31prisoner and his or her family member, agent, or emergency
32contact, as described in paragraph (4), updated information
33throughout the recall and resentencing process with regard to the
34prisoner’s medical condition and the status of the prisoner’s recall
35and resentencing
proceedings.
36(6) Notwithstanding any other provisions of this section, the
37prisoner or his or her family member or designee may
38independently request consideration for recall and resentencing
39by contacting the chief medical officer at the prison or the
40secretary. Upon receipt of the request, the chief medical officer
P19 1and the warden or the warden’s representative shall follow the
2procedures described in paragraph (4). If the secretary determines
3that the prisoner satisfies the criteria set forth in paragraph (2), the
4secretary or board may recommend to the court that the prisoner’s
5sentence be recalled. The secretary shall submit a recommendation
6for release within 30 days in the case of inmates sentenced to
7determinate terms and, in the case of inmates sentenced to
8indeterminate terms, the secretary shall make a recommendation
9to the
Board of Parole Hearings with respect to the inmates who
10have applied under this section. The board shall consider this
11
information and make an independent judgment pursuant to
12paragraph (2) and make findings related thereto before rejecting
13the request or making a recommendation to the court. This action
14shall be taken at the next lawfully noticed board meeting.
15(7) Any recommendation for recall submitted to the court by
16the secretary or the Board of Parole Hearings shall include one or
17more medical evaluations, a postrelease plan, and findings pursuant
18to paragraph (2).
19(8) If possible, the matter shall be heard before the same judge
20of the court who sentenced the prisoner.
21(9) If the court grants the recall and resentencing application,
22the prisoner shall be released by the department within 48 hours
23of receipt of the
court’s order, unless a longer time period is agreed
24to by the inmate. At the time of release, the warden or the warden’s
25representative shall ensure that the prisoner has each of the
26following in his or her possession: a discharge medical summary,
27full medical records, state identification, parole or postrelease
28community supervision medications, and all property belonging
29to the prisoner. After discharge, any additional records shall be
30sent to the prisoner’s forwarding address.
31(10) The secretary shall issue a directive to medical and
32correctional staff employed by the department that details the
33guidelines and procedures for initiating a recall and resentencing
34procedure. The directive shall clearly state that any prisoner who
35is given a prognosis of six months or less to live is eligible for
36recall and resentencing consideration, and
that recall and
37resentencing procedures shall be initiated upon that prognosis.
38(11) The provisions of this subdivision shall be available to an
39inmate who is sentenced to a county jail pursuant to subdivision
40(h). For purposes of those inmates, “secretary” or “warden” shall
P20 1mean the county correctional administrator and “chief medical
2officer” shall mean a physician designated by the county
3correctional administrator for this purpose.
4(f) Notwithstanding any other provision of this section, for
5purposes of paragraph (3) of subdivision (h), any allegation that
6a defendant is eligible for state prison due to a prior or current
7conviction, sentence enhancement, or because he or she is required
8to register as a sex offender shall not be subject to dismissal
9pursuant to Section
1385.
10(g) A sentence to state prison for a determinate term for which
11only one term is specified, is a sentence to state prison under this
12section.
13(h) (1) Except as provided in paragraph (3), a felony punishable
14pursuant to this subdivision where the term is not specified in the
15underlying offense shall be punishable by a term of imprisonment
16in a county jail for 16 months, or two or three years.
17(2) Except as provided in paragraph (3), a felony punishable
18pursuant to this subdivision shall be punishable by imprisonment
19in a county jail for the term described in the underlying offense.
20(3) Notwithstanding paragraphs (1) and (2), where the
defendant
21(A) has a prior or current felony conviction for a serious felony
22described in subdivision (c) of Section 1192.7 or a prior or current
23conviction for a violent felony described in subdivision (c) of
24Section 667.5, (B) has a prior felony conviction in another
25jurisdiction for an offense that has all the elements of a serious
26felony described in subdivision (c) of Section 1192.7 or a violent
27felony described in subdivision (c) of Section 667.5, (C) is required
28to register as a sex offender pursuant to Chapter 5.5 (commencing
29with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
30and as part of the sentence an enhancement pursuant to Section
31186.11 is imposed, an executed sentence for a felony punishable
32pursuant to this subdivision shall be served in state prison.
33(4) Nothing in this subdivision shall be construed to
prevent
34other dispositions authorized by law, including pretrial diversion,
35deferred entry of judgment, or an order granting probation pursuant
36to Section 1203.1.
37(5) (A) Unless the court finds, in the interest of justice, that it
38is not appropriate in a particular case, the court, when imposing a
39sentence pursuant to paragraph (1) or (2), shall suspend execution
P21 1of a concluding portion of the term for a period selected at the
2court’s discretion.
3(B) The portion of a defendant’s sentenced term that is
4suspended pursuant to this paragraph shall be known as mandatory
5supervision, and, unless otherwise ordered by the court, shall
6commence upon release from physical custody or an alternative
7custody program, whichever is later. During the period of
8mandatory
supervision, the defendant shall be supervised by the
9county probation officer in accordance with the terms, conditions,
10and procedures generally applicable to persons placed on probation,
11for the remaining unserved portion of the sentence imposed by the
12court. The period of supervision shall be mandatory, and may not
13be earlier terminated except by court order. Any proceeding to
14revoke or modify mandatory supervision under this subparagraph
15shall be conducted pursuant to either subdivisions (a) and (b) of
16Section 1203.2 or Section 1203.3. During the period when the
17defendant is under that supervision, unless in actual custody related
18to the sentence imposed by the court, the defendant shall be entitled
19to only actual time credit against the term of imprisonment imposed
20by the court. Any time period which is suspended because a person
21has absconded shall not be credited toward the period of
22supervision.
23(6) The sentencing changes made by the act that added this
24subdivision shall be applied prospectively to any person sentenced
25on or after October 1, 2011.
26(7) The sentencing changes made to paragraph (5) by the act
27that added this paragraph shall become effective and operative on
28January 1, 2015, and shall be applied prospectively to any person
29sentenced on or after January 1, 2015.
30(i) This section shall become operative on January 1, 2017.
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