SB 1324, as introduced, Hancock. Sentencing.
Existing law makes certain felonies punishable by a term of imprisonment in a county jail for 16 months, or 2 or 3 years, in cases in which the term is not specified in the underlying offense, except under specified circumstances. Under those circumstances, existing law makes an executed sentence for those felonies punishable in state prison. Existing law finds and declares that the purpose of imprisonment for crime is punishment and that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense.
This bill would find and declare that an aditional purpose of imprisonment for crime is rehabilitation. The bill would also find that those purposes are best served by terms proportionate to the seriousness of the offense and with a correctional treatment program designed to address the particular criminogenic needs of offenders.
Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1170 of the Penal Code, as amended by
2Section 1 of Chapter 378 of the Statutes of 2015, is amended to
3read:
(a) (1) The Legislature finds and declares that the
2begin delete purposeend deletebegin insert purposesend insert of imprisonment for crimebegin delete is punishment. This begin insert are punishment and rehabilitation. These purposes areend insert
3purpose isend delete
4 best served by terms proportionate to the seriousness of the offense
5with provision for uniformity in the sentences of offenders
6committing the same offense under similarbegin delete circumstances. The begin insert
circumstances,
7Legislature further finds and declares that the elimination of
8disparity and the provision of uniformity of sentences can best be
9achieved by determinate sentences fixed by statute in proportion
10to the seriousness of the offense as determined by the Legislature
11to be imposed by the court with specified discretion.end delete
12and a correctional treatment program designed to address the
13particular criminogenic needs of offenders.end insert
14(2) begin deleteNotwithstanding paragraph (1), the end deletebegin insertThe end insertLegislature further
15finds and declares that programs should be available for inmates,
16including, 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
33imposition or execution of sentence or is sentenced pursuant to
34subdivision (b) of Section 1168 because he or she had committed
35his or her crime prior to July 1, 1977. In sentencing the convicted
36person, the court shall apply the sentencing rules of the Judicial
37Council. The court, unless it determines that there are
38circumstances in mitigation of the punishment prescribed,
shall
39also impose any other term that it is required by law to impose as
40an additional term. Nothing in this article shall affect any provision
P3 1of law that imposes the death penalty, that authorizes or restricts
2the granting of probation or suspending the execution or imposition
3of sentence, or expressly provides for imprisonment in the state
4prison for life, except as provided in paragraph (2) of subdivision
5(d). In any case in which the amount of preimprisonment credit
6under Section 2900.5 or any other law is equal to or exceeds any
7sentence imposed pursuant to this chapter, except for the remaining
8portion of mandatory supervision pursuant to subparagraph (B) of
9paragraph (5) of subdivision (h), the entire sentence shall be
10deemed to have been served, except for the remaining period of
11mandatory supervision, and the defendant shall not be actually
12delivered to the custody of the secretary or to the custody of the
13county correctional administrator. The court shall advise the
14defendant that he or she shall
serve an applicable period of parole,
15postrelease community supervision, or mandatory supervision,
16and order the defendant to report to the parole or probation office
17closest to the defendant’s last legal residence, unless the in-custody
18credits equal the total sentence, including both confinement time
19and the period of parole, postrelease community supervision, or
20mandatory supervision. The sentence shall be deemed a separate
21prior prison term or a sentence of imprisonment in a county jail
22under subdivision (h) for purposes of Section 667.5, and a copy
23of the judgment and other necessary documentation shall be
24forwarded to the secretary.
25(b) When a judgment of imprisonment is to be imposed and the
26statute specifies three possible terms, the choice of the appropriate
27term shall rest within the sound discretion of the court. At least
28four days prior to the time set for imposition of judgment, either
29party or the victim, or the family of the
victim if the victim is
30deceased, may submit a statement in aggravation or mitigation. In
31determining the appropriate term, the court may consider the record
32in the case, the probation officer’s report, other reports, including
33reports received pursuant to Section 1203.03, and statements in
34aggravation or mitigation submitted by the prosecution, the
35defendant, or the victim, or the family of the victim if the victim
36is deceased, and any further evidence introduced at the sentencing
37hearing. The court shall select the term which, in the court’s
38discretion, best serves the interests of justice. The court shall set
39forth on the record the reasons for imposing the term selected and
40the court may not impose an upper term by using the fact of any
P4 1enhancement upon which sentence is imposed under any provision
2of law. A term of imprisonment shall not be specified if imposition
3of sentence is suspended.
4(c) The court shall state the reasons for its
sentence choice on
5the record at the time of sentencing. The court shall also inform
6the defendant that as part of the sentence after expiration of the
7term he or she may be on parole for a period as provided in Section
83000 or 3000.08 or postrelease community supervision for a period
9as provided in Section 3451.
10(d) (1) When a defendant subject to this section or subdivision
11(b) of Section 1168 has been sentenced to be imprisoned in the
12state prison or county jail pursuant to subdivision (h) and has been
13committed to the custody of the secretary or the county correctional
14administrator, the court may, within 120 days of the date of
15commitment on its own motion, or at any time upon the
16recommendation of the secretary or the Board of Parole Hearings
17in the case of state prison inmates, or the county correctional
18administrator in the case of county jail inmates, recall the sentence
19and commitment previously ordered and
resentence the defendant
20in the same manner as if he or she had not previously been
21sentenced, provided the new sentence, if any, is no greater than
22the initial sentence. The court resentencing under this subdivision
23shall apply the sentencing rules of the Judicial Council so as to
24eliminate disparity of sentences and to promote uniformity of
25sentencing. Credit shall be given for time served.
26(2) (A) (i) When a defendant who was under 18 years of age
27at the time of the commission of the offense for which the
28defendant was sentenced to imprisonment for life without the
29possibility of parole has served at least 15 years of that sentence,
30the defendant may submit to the sentencing court a petition for
31recall and resentencing.
32(ii) Notwithstanding clause (i), this paragraph shall not apply
33to defendants sentenced to life without parole for
an offense where
34the defendant tortured, as described in Section 206, his or her
35victim or the victim was a public safety official, including any law
36enforcement personnel mentioned in Chapter 4.5 (commencing
37with Section 830) of Title 3, or any firefighter as described in
38Section 245.1, as well as any other officer in any segment of law
39enforcement who is employed by the federal government, the state,
40or any of its political subdivisions.
P5 1(B) The defendant shall file the original petition with the
2sentencing court. A copy of the petition shall be served on the
3agency that prosecuted the case. The petition shall include the
4defendant’s statement that he or she was under 18 years of age at
5the time of the crime and was sentenced to life in prison without
6the possibility of parole, the defendant’s statement describing his
7or her remorse and work towards rehabilitation, and the defendant’s
8statement that one of the following is true:
9(i) The defendant was convicted pursuant to felony murder or
10aiding and abetting murder provisions of law.
11(ii) The defendant does not have juvenile felony adjudications
12for assault or other felony crimes with a significant potential for
13personal harm to victims prior to the offense for which the sentence
14is being considered for recall.
15(iii) The defendant committed the offense with at least one adult
16codefendant.
17(iv) The defendant has performed acts that tend to indicate
18rehabilitation or the potential for rehabilitation, including, but not
19limited to, availing himself or herself of rehabilitative, educational,
20or vocational programs, if those programs have been available at
21his or her classification level and facility, using self-study for
22
self-improvement, or showing evidence of remorse.
23(C) If any of the information required in subparagraph (B) is
24missing from the petition, or if proof of service on the prosecuting
25agency is not provided, the court shall return the petition to the
26defendant and advise the defendant that the matter cannot be
27considered without the missing information.
28(D) A reply to the petition, if any, shall be filed with the court
29within 60 days of the date on which the prosecuting agency was
30served with the petition, unless a continuance is granted for good
31cause.
32(E) If the court finds by a preponderance of the evidence that
33the statements in the petition are true, the court shall hold a hearing
34to consider whether to recall the sentence and commitment
35previously ordered and to resentence the defendant in the same
36manner as if
the defendant had not previously been sentenced,
37provided that the new sentence, if any, is not greater than the initial
38sentence. Victims, or victim family members if the victim is
39deceased, shall retain the rights to participate in the hearing.
P6 1(F) The factors that the court may consider when determining
2whether to recall and resentence include, but are not limited to,
3the following:
4(i) The defendant was convicted pursuant to felony murder or
5aiding and abetting murder provisions of law.
6(ii) The defendant does not have juvenile felony adjudications
7for assault or other felony crimes with a significant potential for
8personal harm to victims prior to the offense for which the sentence
9is being considered for recall.
10(iii) The defendant committed the
offense with at least one adult
11codefendant.
12(iv) Prior to the offense for which the sentence is being
13considered for recall, the defendant had insufficient adult support
14or supervision and had suffered from psychological or physical
15trauma, or significant stress.
16(v) The defendant suffers from cognitive limitations due to
17mental illness, developmental disabilities, or other factors that did
18not constitute a defense, but influenced the defendant’s
19involvement in the offense.
20(vi) The defendant has performed acts that tend to indicate
21rehabilitation or the potential for rehabilitation, including, but not
22limited to, availing himself or herself of rehabilitative, educational,
23or vocational programs, if those programs have been available at
24his or her classification level and facility, using self-study for
25
self-improvement, or showing evidence of remorse.
26(vii) The defendant has maintained family ties or connections
27with others through letter writing, calls, or visits, or has eliminated
28contact with individuals outside of prison who are currently
29involved with crime.
30(viii) The defendant has had no disciplinary actions for violent
31activities in the last five years in which the defendant was
32determined to be the aggressor.
33(G) The court shall have the discretion to recall the sentence
34and commitment previously ordered and to resentence the
35defendant in the same manner as if the defendant had not
36previously been sentenced, provided that the new sentence, if any,
37is not greater than the initial sentence. The discretion of the court
38shall be exercised in consideration of the criteria in subparagraph
39(B). Victims, or victim
family members if the victim is deceased,
P7 1shall be notified of the resentencing hearing and shall retain their
2rights to participate in the hearing.
3(H) If the sentence is not recalled, the defendant may submit
4another petition for recall and resentencing to the sentencing court
5when the defendant has been committed to the custody of the
6department for at least 20 years. If recall and resentencing is not
7granted under that petition, the defendant may file another petition
8after having served 24 years. The final petition may be submitted,
9and the response to that petition shall be determined, during the
1025th year of the defendant’s sentence.
11(I) In addition to the criteria in subparagraph (F), the court may
12consider any other criteria that the court deems relevant to its
13decision, so long as the court identifies them on the record,
14provides a statement of reasons for adopting them,
and states why
15the defendant does or does not satisfy the criteria.
16(J) This subdivision shall have retroactive application.
17(e) (1) Notwithstanding any other law and consistent with
18paragraph (1) of subdivision (a), if the secretary or the Board of
19Parole Hearings or both determine that a prisoner satisfies the
20criteria set forth in paragraph (2), the secretary or the board may
21recommend to the court that the prisoner’s sentence be recalled.
22(2) The court shall have the discretion to resentence or recall if
23the court finds that the facts described in subparagraphs (A) and
24(B) or subparagraphs (B) and (C) exist:
25(A) The prisoner is terminally ill with an incurable condition
26caused by an illness or disease that would produce death
within
27six months, as determined by a physician employed by the
28department.
29(B) The conditions under which the prisoner would be released
30or receive treatment do not pose a threat to public safety.
31(C) The prisoner is permanently medically incapacitated with
32a medical condition that renders him or her permanently unable
33to perform activities of basic daily living, and results in the prisoner
34requiring 24-hour total care, including, but not limited to, coma,
35persistent vegetative state, brain death, ventilator-dependency, loss
36of control of muscular or neurological function, and that
37incapacitation did not exist at the time of the original sentencing.
38The Board of Parole Hearings shall make findings pursuant to
39this subdivision before making a recommendation for resentence
P8 1or recall to the court. This subdivision does not apply to a
prisoner
2sentenced to death or a term of life without the possibility of parole.
3(3) Within 10 days of receipt of a positive recommendation by
4the secretary or the board, the court shall hold a hearing to consider
5whether the prisoner’s sentence should be recalled.
6(4) Any physician employed by the department who determines
7that a prisoner has six months or less to live shall notify the chief
8medical officer of the prognosis. If the chief medical officer
9concurs with the prognosis, he or she shall notify the warden.
10Within 48 hours of receiving notification, the warden or the
11warden’s representative shall notify the prisoner of the recall and
12resentencing procedures, and shall arrange for the prisoner to
13designate a family member or other outside agent to be notified
14as to the prisoner’s medical condition and prognosis, and as to the
15recall and resentencing procedures. If the
inmate is deemed
16mentally unfit, the warden or the warden’s representative shall
17contact the inmate’s emergency contact and provide the information
18described in paragraph (2).
19(5) The warden or the warden’s representative shall provide the
20prisoner and his or her family member, agent, or emergency
21contact, as described in paragraph (4), updated information
22throughout the recall and resentencing process with regard to the
23prisoner’s medical condition and the status of the prisoner’s recall
24and resentencing proceedings.
25(6) Notwithstanding any other provisions of this section, the
26prisoner or his or her family member or designee may
27independently request consideration for recall and resentencing
28by contacting the chief medical officer at the prison or the
29secretary. Upon receipt of the request, the chief medical officer
30and the warden or the warden’s representative shall follow the
31
procedures described in paragraph (4). If the secretary determines
32that the prisoner satisfies the criteria set forth in paragraph (2), the
33secretary or board may recommend to the court that the prisoner’s
34sentence be recalled. The secretary shall submit a recommendation
35for release within 30 days in the case of inmates sentenced to
36determinate terms and, in the case of inmates sentenced to
37indeterminate terms, the secretary shall make a recommendation
38to the Board of Parole Hearings with respect to the inmates who
39have applied under this section. The board shall consider this
40information and make an independent judgment pursuant to
P9 1paragraph (2) and make findings related thereto before rejecting
2the request or making a recommendation to the court. This action
3shall be taken at the next lawfully noticed board meeting.
4(7) Any recommendation for recall submitted to the court by
5the secretary or the Board of Parole Hearings shall include one or
6
more medical evaluations, a postrelease plan, and findings pursuant
7to paragraph (2).
8(8) If possible, the matter shall be heard before the same judge
9of the court who sentenced the prisoner.
10(9) If the court grants the recall and resentencing application,
11the prisoner shall be released by the department within 48 hours
12of receipt of the court’s order, unless a longer time period is agreed
13to by the inmate. At the time of release, the warden or the warden’s
14representative shall ensure that the prisoner has each of the
15following in his or her possession: a discharge medical summary,
16full medical records, state identification, parole or postrelease
17community supervision medications, and all property belonging
18to the prisoner. After discharge, any additional records shall be
19sent to the prisoner’s forwarding address.
20(10) The secretary shall issue a directive to medical and
21correctional staff employed by the department that details the
22guidelines and procedures for initiating a recall and resentencing
23procedure. The directive shall clearly state that any prisoner who
24is given a prognosis of six months or less to live is eligible for
25recall and resentencing consideration, and that recall and
26resentencing procedures shall be initiated upon that prognosis.
27(11) The provisions of this subdivision shall be available to an
28inmate who is sentenced to a county jail pursuant to subdivision
29(h). For purposes of those inmates, “secretary” or “warden” shall
30mean the county correctional administrator and “chief medical
31officer” shall mean a physician designated by the county
32correctional administrator for this purpose.
33(f) Notwithstanding any other provision of this section, for
34purposes of
paragraph (3) of subdivision (h), any allegation that
35a defendant is eligible for state prison due to a prior or current
36conviction, sentence enhancement, or because he or she is required
37to register as a sex offender shall not be subject to dismissal
38pursuant to Section 1385.
P10 1(g) A sentence to state prison for a determinate term for which
2only one term is specified, is a sentence to state prison under this
3section.
4(h) (1) Except as provided in paragraph (3), a felony punishable
5pursuant to this subdivision where the term is not specified in the
6underlying offense shall be punishable by a term of imprisonment
7in a county jail for 16 months, or two or three years.
8(2) Except as provided in paragraph (3), a felony punishable
9pursuant to this subdivision shall be punishable by imprisonment
10in a
county jail for the term described in the underlying offense.
11(3) Notwithstanding paragraphs (1) and (2), where the defendant
12(A) has a prior or current felony conviction for a serious felony
13described in subdivision (c) of Section 1192.7 or a prior or current
14conviction for a violent felony described in subdivision (c) of
15Section 667.5, (B) has a prior felony conviction in another
16jurisdiction for an offense that has all the elements of a serious
17felony described in subdivision (c) of Section 1192.7 or a violent
18felony described in subdivision (c) of Section 667.5, (C) is required
19to register as a sex offender pursuant to Chapter 5.5 (commencing
20with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
21and as part of the sentence an enhancement pursuant to Section
22186.11 is imposed, an executed sentence for a felony punishable
23pursuant to this subdivision shall be served in state prison.
24(4) Nothing in this subdivision shall be construed to prevent
25other dispositions authorized by law, including pretrial diversion,
26deferred entry of judgment, or an order granting probation pursuant
27to Section 1203.1.
28(5) (A) Unless the court finds that, in the interests of justice, it
29is not appropriate in a particular case, the court, when imposing a
30sentence pursuant to paragraph (1) or (2), shall suspend execution
31of a concluding portion of the term for a period selected at the
32court’s discretion.
33(B) The portion of a defendant’s sentenced term that is
34suspended pursuant to this paragraph shall be known as mandatory
35supervision, and, unless otherwise ordered by the court, shall
36commence upon release from physical custody or an alternative
37custody program, whichever is later. During the period of
38
mandatory supervision, the defendant shall be supervised by the
39county probation officer in accordance with the terms, conditions,
40and procedures generally applicable to persons placed on probation,
P11 1for the remaining unserved portion of the sentence imposed by the
2court. The period of supervision shall be mandatory, and may not
3be earlier terminated except by court order. Any proceeding to
4revoke or modify mandatory supervision under this subparagraph
5shall be conducted pursuant to either subdivisions (a) and (b) of
6Section 1203.2 or Section 1203.3. During the period when the
7defendant is under that supervision, unless in actual custody related
8to the sentence imposed by the court, the defendant shall be entitled
9to only actual time credit against the term of imprisonment imposed
10by the court. Any time period which is suspended because a person
11has absconded shall not be credited toward the period of
12supervision.
13(6) The sentencing changes made
by the act that added this
14subdivision shall be applied prospectively to any person sentenced
15on or after October 1, 2011.
16(7) The sentencing changes made to paragraph (5) by the act
17that added this paragraph shall become effective and operative on
18January 1, 2015, and shall be applied prospectively to any person
19sentenced on or after January 1, 2015.
20(i) This section shall remain in effect only until January 1, 2017,
21and as of that date is repealed, unless a later enacted statute, that
22is enacted before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
242 of Chapter 378 of the Statutes of 2015, is amended to read:
(a) (1) The Legislature finds and declares that the
26begin delete purposeend deletebegin insert purposesend insert of imprisonment for crimebegin delete is punishment. This begin insert are punishment and rehabilitation. Those purposes areend insert
27purpose isend delete
28 best served by terms proportionate to the seriousness of the offense
29with provision for uniformity in the sentences of offenders
30committing the same offense under similarbegin delete circumstances. The begin insert
circumstances,
31Legislature further finds and declares that the elimination of
32disparity and the provision of uniformity of sentences can best be
33achieved by determinate sentences fixed by statute in proportion
34to the seriousness of the offense as determined by the Legislature
35to be imposed by the court with specified discretion.end delete
36and a correctional treatment program designed to address the
37particular criminogenic needs of offenders.end insert
38(2) begin deleteNotwithstanding paragraph (1), the end deletebegin insertThe end insertLegislature further
39finds and declares that programs should be available for inmates,
40including, but not limited to, educational programs, that are
P12 1designed to prepare nonviolent felony offenders for successful
2reentry into the community. The Legislature encourages the
3development of policies and programs designed to educate and
4rehabilitate nonviolent felony offenders. In implementing this
5section, the Department of Corrections and Rehabilitation is
6encouraged to give priority enrollment in programs to promote
7successful return to the community to an inmate
with a short
8remaining term of commitment and a release date that would allow
9him or her adequate time to complete the program.
10(3) In any case in which the punishment prescribed by statute
11for a person convicted of a public offense is a term of imprisonment
12in the state prison, or a term pursuant to subdivision (h), of any
13specification of three time periods, the court shall sentence the
14defendant to one of the terms of imprisonment specified unless
15the convicted person is given any other disposition provided by
16law, including a fine, jail, probation, or the suspension of
17imposition or execution of sentence or is sentenced pursuant to
18subdivision (b) of Section 1168 because he or she had committed
19his or her crime prior to July 1, 1977. In sentencing the convicted
20person, the court shall apply the sentencing rules of the Judicial
21Council. The court, unless it determines that there are
22circumstances in mitigation of the punishment prescribed,
shall
23also impose any other term that it is required by law to impose as
24an additional term. Nothing in this article shall affect any provision
25of law that imposes the death penalty, that authorizes or restricts
26the granting of probation or suspending the execution or imposition
27of sentence, or expressly provides for imprisonment in the state
28prison for life, except as provided in paragraph (2) of subdivision
29(d). In any case in which the amount of preimprisonment credit
30under Section 2900.5 or any other provision of law is equal to or
31exceeds any sentence imposed pursuant to this chapter, except for
32a remaining portion of mandatory supervision imposed pursuant
33to subparagraph (B) of paragraph (5) of subdivision (h), the entire
34sentence shall be deemed to have been served, except for the
35remaining period of mandatory supervision, and the defendant
36shall not be actually delivered to the custody of the secretary or
37the county correctional administrator. The court shall advise the
38defendant that he or she shall
serve an applicable period of parole,
39postrelease community supervision, or mandatory supervision and
40order the defendant to report to the parole or probation office
P13 1closest to the defendant’s last legal residence, unless the in-custody
2credits equal the total sentence, including both confinement time
3and the period of parole, postrelease community supervision, or
4mandatory supervision. The sentence shall be deemed a separate
5prior prison term or a sentence of imprisonment in a county jail
6under subdivision (h) for purposes of Section 667.5, and a copy
7of the judgment and other necessary documentation shall be
8forwarded to the secretary.
9(b) When a judgment of imprisonment is to be imposed and the
10statute specifies three possible terms, the court shall order
11imposition of the middle term, unless there are circumstances in
12aggravation or mitigation of the crime. At least four days prior to
13the time set for imposition of judgment, either party or
the victim,
14or the family of the victim if the victim is deceased, may submit
15a statement in aggravation or mitigation to dispute facts in the
16record or the probation officer’s report, or to present additional
17facts. In determining whether there are circumstances that justify
18imposition of the upper or lower term, the court may consider the
19record in the case, the probation officer’s report, other reports,
20including reports received pursuant to Section 1203.03, and
21statements in aggravation or mitigation submitted by the
22prosecution, the defendant, or the victim, or the family of the victim
23if the victim is deceased, and any further evidence introduced at
24the sentencing hearing. The court shall set forth on the record the
25facts and reasons for imposing the upper or lower term. The court
26may not impose an upper term by using the fact of any
27enhancement upon which sentence is imposed under any provision
28of law. A term of imprisonment shall not be specified if imposition
29of sentence is suspended.
30(c) The court shall state the reasons for its sentence choice on
31the record at the time of sentencing. The court shall also inform
32the defendant that as part of the sentence after expiration of the
33term he or she may be on parole for a period as provided in Section
343000 or 3000.08 or postrelease community supervision for a period
35as provided in Section 3451.
36(d) (1) When a defendant subject to this section or subdivision
37(b) of Section 1168 has been sentenced to be imprisoned in the
38state prison or county jail pursuant to subdivision (h) and has been
39committed to the custody of the secretary or the county correctional
40administrator, the court may, within 120 days of the date of
P14 1commitment on its own motion, or at any time upon the
2recommendation of the secretary or the Board of Parole Hearings
3in the case of state prison inmates, or the county correctional
4
administrator in the case of county jail inmates, recall the sentence
5and commitment previously ordered and resentence the defendant
6in the same manner as if he or she had not previously been
7sentenced, provided the new sentence, if any, is no greater than
8the initial sentence. The court resentencing under this subdivision
9shall apply the sentencing rules of the Judicial Council so as to
10eliminate disparity of sentences and to promote uniformity of
11sentencing. Credit shall be given for time served.
12(2) (A) (i) When a defendant who was under 18 years of age
13at the time of the commission of the offense for which the
14defendant was sentenced to imprisonment for life without the
15possibility of parole has served at least 15 years of that sentence,
16the defendant may submit to the sentencing court a petition for
17recall and resentencing.
18(ii) Notwithstanding clause (i), this paragraph shall not apply
19to defendants sentenced to life without parole for an offense where
20the defendant tortured, as described in Section 206, his or her
21victim or the victim was a public safety official, including any law
22enforcement personnel mentioned in Chapter 4.5 (commencing
23with Section 830) of Title 3, or any firefighter as described in
24Section 245.1, as well as any other officer in any segment of law
25enforcement who is employed by the federal government, the state,
26or any of its political subdivisions.
27(B) The defendant shall file the original petition with the
28sentencing court. A copy of the petition shall be served on the
29agency that prosecuted the case. The petition shall include the
30defendant’s statement that he or she was under 18 years of age at
31the time of the crime and was sentenced to life in prison without
32the possibility of parole, the defendant’s statement describing his
33
or her remorse and work towards rehabilitation, and the defendant’s
34statement that one of the following is true:
35(i) The defendant was convicted pursuant to felony murder or
36aiding and abetting murder provisions of law.
37(ii) The defendant does not have juvenile felony adjudications
38for assault or other felony crimes with a significant potential for
39personal harm to victims prior to the offense for which the sentence
40is being considered for recall.
P15 1(iii) The defendant committed the offense with at least one adult
2codefendant.
3(iv) The defendant has performed acts that tend to indicate
4rehabilitation or the potential for rehabilitation, including, but not
5limited to, availing himself or herself of rehabilitative, educational,
6or vocational programs, if
those programs have been available at
7his or her classification level and facility, using self-study for
8self-improvement, or showing evidence of remorse.
9(C) If any of the information required in subparagraph (B) is
10missing from the petition, or if proof of service on the prosecuting
11agency is not provided, the court shall return the petition to the
12defendant and advise the defendant that the matter cannot be
13considered without the missing information.
14(D) A reply to the petition, if any, shall be filed with the court
15within 60 days of the date on which the prosecuting agency was
16served with the petition, unless a continuance is granted for good
17cause.
18(E) If the court finds by a preponderance of the evidence that
19the statements in the petition are true, the court shall hold a hearing
20to consider whether to recall
the sentence and commitment
21previously ordered and to resentence the defendant in the same
22manner as if the defendant had not previously been sentenced,
23provided that the new sentence, if any, is not greater than the initial
24sentence. Victims, or victim family members if the victim is
25deceased, shall retain the rights to participate in the hearing.
26(F) The factors that the court may consider when determining
27whether to recall and resentence include, but are not limited to,
28the following:
29(i) The defendant was convicted pursuant to felony murder or
30aiding and abetting murder provisions of law.
31(ii) The defendant does not have juvenile felony adjudications
32for assault or other felony crimes with a significant potential for
33personal harm to victims prior to the offense for which the sentence
34is being considered for
recall.
35(iii) The defendant committed the offense with at least one adult
36codefendant.
37(iv) Prior to the offense for which the sentence is being
38considered for recall, the defendant had insufficient adult support
39or supervision and had suffered from psychological or physical
40trauma, or significant stress.
P16 1(v) The defendant suffers from cognitive limitations due to
2mental illness, developmental disabilities, or other factors that did
3not constitute a defense, but influenced the defendant’s
4involvement in the offense.
5(vi) The defendant has performed acts that tend to indicate
6rehabilitation or the potential for rehabilitation, including, but not
7limited to, availing himself or herself of rehabilitative, educational,
8or vocational programs, if those
programs have been available at
9his or her classification level and facility, using self-study for
10self-improvement, or showing evidence of remorse.
11(vii) The defendant has maintained family ties or connections
12with others through letter writing, calls, or visits, or has eliminated
13contact with individuals outside of prison who are currently
14involved with crime.
15(viii) The defendant has had no disciplinary actions for violent
16activities in the last five years in which the defendant was
17determined to be the aggressor.
18(G) The court shall have the discretion to recall the sentence
19and commitment previously ordered and to resentence the
20defendant in the same manner as if the defendant had not
21previously been sentenced, provided that the new sentence, if any,
22is not greater than the initial sentence. The discretion of
the court
23shall be exercised in consideration of the criteria in subparagraph
24(B). Victims, or victim family members if the victim is deceased,
25shall be notified of the resentencing hearing and shall retain their
26rights to participate in the hearing.
27(H) If the sentence is not recalled, the defendant may submit
28another petition for recall and resentencing to the sentencing court
29when the defendant has been committed to the custody of the
30department for at least 20 years. If recall and resentencing is not
31granted under that petition, the defendant may file another petition
32after having served 24 years. The final petition may be submitted,
33and the response to that petition shall be determined, during the
3425th year of the defendant’s sentence.
35(I) In addition to the criteria in subparagraph (F), the court may
36consider any other criteria that the court deems relevant to its
37decision,
so long as the court identifies them on the record,
38provides a statement of reasons for adopting them, and states why
39the defendant does or does not satisfy the criteria.
40(J) This subdivision shall have retroactive application.
P17 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
P18 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
24information and make an independent judgment pursuant to
25paragraph (2) and make findings related thereto before rejecting
26the request or making a recommendation to the court. This action
27shall be taken at the next lawfully noticed board meeting.
28(7) Any recommendation for
recall submitted to the court by
29the secretary or the Board of Parole Hearings shall include one or
30more medical evaluations, a postrelease plan, and findings pursuant
31to paragraph (2).
32(8) If possible, the matter shall be heard before the same judge
33of the court who sentenced the prisoner.
34(9) If the court grants the recall and resentencing application,
35the prisoner shall be released by the department within 48 hours
36of receipt of the court’s order, unless a longer time period is agreed
37to by the inmate. At the time of release, the warden or the warden’s
38representative shall ensure that the prisoner has each of the
39following in his or her possession: a discharge medical summary,
40full medical records, state identification, parole or postrelease
P19 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
P20 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, in the interest of justice, that 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
17 supervision, 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
P21 1January 1, 2015, and shall be applied prospectively to any person
2sentenced on or after January 1, 2015.
3(i) This section shall become operative on January 1, 2017.
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