Amended in Senate March 28, 2016

Senate BillNo. 1324


Introduced by Senator Hancock

February 19, 2016


An act to amend Section 1170 ofbegin insert, and to add Section 5000.1 to,end insert the Penal Code, relating tobegin delete sentencing.end deletebegin insert incarceration.end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 1324, as amended, Hancock. begin deleteSentencing.end deletebegin insertIncarceration: rehabilitation.end insert

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 anbegin delete aditionalend deletebegin insert additionalend insert 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.

begin insert

Existing law creates the Department of Corrections and Rehabilitation and vests it with certain powers and duties.

end insert
begin insert

This bill would state, among other things, that the mission of the department is to promote public safety by providing a safe and constructive prison environment that fosters positive and enduring behavioral change among offenders, both in prison and after their return to the community.

end insert

Vote: majority. Appropriation: no. Fiscal committee: no. State-mandated local program: no.

The people of the State of California do enact as follows:

P2    1

SECTION 1.  

Section 1170 of the Penal Code, as amended by
2Section 1 of Chapter 378 of the Statutes of 2015, is amended to
3read:

4

1170.  

(a) (1) The Legislature finds and declares that the
5purposes of imprisonment for crime are punishment and
6rehabilitation. These purposes are best served by terms
7proportionate to the seriousness of the offense with provision for
8uniformity in the sentences of offenders committing the same
9offense under similar circumstances, and a correctional treatment
10program designed to address the particular criminogenic needs of
11offenders.

12(2) The Legislature further finds and declares that programs
13should be available for inmates, including, but not limited to,
14educational programs, that are designed to prepare nonviolent
15felony offenders for successful reentry into the community. The
16Legislature encourages the development of policies and programs
17designed to educate and rehabilitate nonviolent felony offenders.
18In implementing this section, the Department of Corrections and
19Rehabilitation is encouraged to give priority enrollment in
20programs to promote successful return to the community to an
21inmate with a short remaining term of commitment and a release
22date that would allow him or her adequate time to complete the
23program.

24(3) In any case in which the punishment prescribed by statute
25for a person convicted of a public offense is a term of imprisonment
26in the state prison or a term pursuant to subdivision (h) of any
27specification of three time periods, the court shall sentence the
28defendant to one of the terms of imprisonment specified unless
29the convicted person is given any other disposition provided by
30law, including a fine, jail, probation, or the suspension of
31imposition or execution of sentence or is sentenced pursuant to
32subdivision (b) of Section 1168 because he or she had committed
33his or her crime prior to July 1, 1977. In sentencing the convicted
P3    1person, the court shall apply the sentencing rules of the Judicial
2Council. The court, unless it determines that there are
3circumstances in mitigation of the punishment prescribed, shall
4also impose any other term that it is required by law to impose as
5an additional term. Nothing in this article shall affect any provision
6of law that imposes the death penalty, that authorizes or restricts
7the granting of probation or suspending the execution or imposition
8of sentence, or expressly provides for imprisonment in the state
9prison for life, except as provided in paragraph (2) of subdivision
10(d). In any case in which the amount of preimprisonment credit
11under Section 2900.5 or any other law is equal to or exceeds any
12sentence imposed pursuant to this chapter, except for the remaining
13portion of mandatory supervision pursuant to subparagraph (B) of
14paragraph (5) of subdivision (h), the entire sentence shall be
15deemed to have been served, except for the remaining period of
16mandatory supervision, and the defendant shall not be actually
17delivered to the custody of the secretary or to the custody of the
18county correctional administrator. The court shall advise the
19defendant that he or she shall serve an applicable period of parole,
20postrelease community supervision, or mandatory supervision,
21and order the defendant to report to the parole or probation office
22closest to the defendant’s last legal residence, unless the in-custody
23credits equal the total sentence, including both confinement time
24and the period of parole, postrelease community supervision, or
25mandatory supervision. The sentence shall be deemed a separate
26prior prison term or a sentence of imprisonment in a county jail
27under subdivision (h) for purposes of Section 667.5, and a copy
28of the judgment and other necessary documentation shall be
29forwarded to the secretary.

30(b) When a judgment of imprisonment is to be imposed and the
31statute specifies three possible terms, the choice of the appropriate
32term shall rest within the sound discretion of the court. At least
33four days prior to the time set for imposition of judgment, either
34party or the victim, or the family of the victim if the victim is
35deceased, may submit a statement in aggravation or mitigation. In
36determining the appropriate term, the court may consider the record
37in the case, the probation officer’s report, other reports, including
38reports received pursuant to Section 1203.03, and statements in
39aggravation or mitigation submitted by the prosecution, the
40defendant, or the victim, or the family of the victim if the victim
P4    1is deceased, and any further evidence introduced at the sentencing
2hearing. The court shall select the term which, in the court’s
3discretion, best serves the interests of justice. The court shall set
4forth on the record the reasons for imposing the term selected and
5the court may not impose an upper term by using the fact of any
6enhancement upon which sentence is imposed under any provision
7of law. A term of imprisonment shall not be specified if imposition
8of sentence is suspended.

9(c) The court shall state the reasons for its sentence choice on
10the record at the time of sentencing. The court shall also inform
11the defendant that as part of the sentence after expiration of the
12term he or she may be on parole for a period as provided in Section
133000 or 3000.08 or postrelease community supervision for a period
14as provided in Section 3451.

15(d) (1) When a defendant subject to this section or subdivision
16(b) of Section 1168 has been sentenced to be imprisoned in the
17state prison or county jail pursuant to subdivision (h) and has been
18committed to the custody of the secretary or the county correctional
19administrator, the court may, within 120 days of the date of
20commitment on its own motion, or at any time upon the
21recommendation of the secretary or the Board of Parole Hearings
22in the case of state prison inmates, or the county correctional
23administrator in the case of county jail inmates, recall the sentence
24and commitment previously ordered and resentence the defendant
25in the same manner as if he or she had not previously been
26sentenced, provided the new sentence, if any, is no greater than
27the initial sentence. The court resentencing under this subdivision
28shall apply the sentencing rules of the Judicial Council so as to
29eliminate disparity of sentences and to promote uniformity of
30sentencing. Credit shall be given for time served.

31(2) (A) (i) When a defendant who was under 18 years of age
32at the time of the commission of the offense for which the
33defendant was sentenced to imprisonment for life without the
34possibility of parole has served at least 15 years of that sentence,
35the defendant may submit to the sentencing court a petition for
36recall and resentencing.

37(ii) Notwithstanding clause (i), this paragraph shall not apply
38to defendants sentenced to life without parole for an offense where
39the defendant tortured, as described in Section 206, his or her
40victim or the victim was a public safety official, including any law
P5    1enforcement personnel mentioned in Chapter 4.5 (commencing
2with Section 830) of Title 3, or any firefighter as described in
3Section 245.1, as well as any other officer in any segment of law
4enforcement who is employed by the federal government, the state,
5or any of its political subdivisions.

6(B) The defendant shall file the original petition with the
7sentencing court. A copy of the petition shall be served on the
8agency that prosecuted the case. The petition shall include the
9defendant’s statement that he or she was under 18 years of age at
10the time of the crime and was sentenced to life in prison without
11the possibility of parole, the defendant’s statement describing his
12or her remorse and work towards rehabilitation, and the defendant’s
13statement that one of the following is true:

14(i) The defendant was convicted pursuant to felony murder or
15aiding and abetting murder provisions of law.

16(ii) The defendant does not have juvenile felony adjudications
17for assault or other felony crimes with a significant potential for
18personal harm to victims prior to the offense for which the sentence
19is being considered for recall.

20(iii) The defendant committed the offense with at least one adult
21codefendant.

22(iv) The defendant has performed acts that tend to indicate
23rehabilitation or the potential for rehabilitation, including, but not
24limited to, availing himself or herself of rehabilitative, educational,
25or vocational programs, if those programs have been available at
26his or her classification level and facility, using self-study for
27 self-improvement, or showing evidence of remorse.

28(C) If any of the information required in subparagraph (B) is
29missing from the petition, or if proof of service on the prosecuting
30agency is not provided, the court shall return the petition to the
31defendant and advise the defendant that the matter cannot be
32considered without the missing information.

33(D) A reply to the petition, if any, shall be filed with the court
34within 60 days of the date on which the prosecuting agency was
35served with the petition, unless a continuance is granted for good
36cause.

37(E) If the court finds by a preponderance of the evidence that
38the statements in the petition are true, the court shall hold a hearing
39to consider whether to recall the sentence and commitment
40previously ordered and to resentence the defendant in the same
P6    1manner as if the defendant had not previously been sentenced,
2provided that the new sentence, if any, is not greater than the initial
3sentence. Victims, or victim family members if the victim is
4deceased, shall retain the rights to participate in the hearing.

5(F) The factors that the court may consider when determining
6whether to recall and resentence include, but are not limited to,
7the following:

8(i) The defendant was convicted pursuant to felony murder or
9aiding and abetting murder provisions of law.

10(ii) The defendant does not have juvenile felony adjudications
11for assault or other felony crimes with a significant potential for
12personal harm to victims prior to the offense for which the sentence
13is being considered for recall.

14(iii) The defendant committed the offense with at least one adult
15codefendant.

16(iv) Prior to the offense for which the sentence is being
17considered for recall, the defendant had insufficient adult support
18or supervision and had suffered from psychological or physical
19trauma, or significant stress.

20(v) The defendant suffers from cognitive limitations due to
21mental illness, developmental disabilities, or other factors that did
22not constitute a defense, but influenced the defendant’s
23involvement in the offense.

24(vi) The defendant has performed acts that tend to indicate
25rehabilitation or the potential for rehabilitation, including, but not
26limited to, availing himself or herself of rehabilitative, educational,
27or vocational programs, if those programs have been available at
28his or her classification level and facility, using self-study for
29 self-improvement, or showing evidence of remorse.

30(vii) The defendant has maintained family ties or connections
31with others through letter writing, calls, or visits, or has eliminated
32contact with individuals outside of prison who are currently
33involved with crime.

34(viii) The defendant has had no disciplinary actions for violent
35activities in the last five years in which the defendant was
36determined to be the aggressor.

37(G) The court shall have the discretion to recall the sentence
38and commitment previously ordered and to resentence the
39defendant in the same manner as if the defendant had not
40previously been sentenced, provided that the new sentence, if any,
P7    1is not greater than the initial sentence. The discretion of the court
2shall be exercised in consideration of the criteria in subparagraph
3(B). Victims, or victim family members if the victim is deceased,
4shall be notified of the resentencing hearing and shall retain their
5rights to participate in the hearing.

6(H) If the sentence is not recalled, the defendant may submit
7another petition for recall and resentencing to the sentencing court
8when the defendant has been committed to the custody of the
9department for at least 20 years. If recall and resentencing is not
10granted under that petition, the defendant may file another petition
11after having served 24 years. The final petition may be submitted,
12and the response to that petition shall be determined, during the
1325th year of the defendant’s sentence.

14(I) In addition to the criteria in subparagraph (F), the court may
15consider any other criteria that the court deems relevant to its
16decision, so long as the court identifies them on the record,
17provides a statement of reasons for adopting them, and states why
18the defendant does or does not satisfy the criteria.

19(J) This subdivision shall have retroactive application.

20(e) (1) Notwithstanding any other law and consistent with
21paragraph (1) of subdivision (a), if the secretary or the Board of
22Parole Hearings or both determine that a prisoner satisfies the
23criteria set forth in paragraph (2), the secretary or the board may
24recommend to the court that the prisoner’s sentence be recalled.

25(2) The court shall have the discretion to resentence or recall if
26the court finds that the facts described in subparagraphs (A) and
27(B) or subparagraphs (B) and (C) exist:

28(A) The prisoner is terminally ill with an incurable condition
29caused by an illness or disease that would produce death within
30six months, as determined by a physician employed by the
31department.

32(B) The conditions under which the prisoner would be released
33or receive treatment do not pose a threat to public safety.

34(C) The prisoner is permanently medically incapacitated with
35a medical condition that renders him or her permanently unable
36to perform activities of basic daily living, and results in the prisoner
37requiring 24-hour total care, including, but not limited to, coma,
38persistent vegetative state, brain death, ventilator-dependency, loss
39of control of muscular or neurological function, and that
40incapacitation did not exist at the time of the original sentencing.

P8    1The Board of Parole Hearings shall make findings pursuant to
2this subdivision before making a recommendation for resentence
3or recall to the court. This subdivision does not apply to a prisoner
4sentenced to death or a term of life without the possibility of parole.

5(3) Within 10 days of receipt of a positive recommendation by
6the secretary or the board, the court shall hold a hearing to consider
7whether the prisoner’s sentence should be recalled.

8(4) Any physician employed by the department who determines
9that a prisoner has six months or less to live shall notify the chief
10medical officer of the prognosis. If the chief medical officer
11concurs with the prognosis, he or she shall notify the warden.
12Within 48 hours of receiving notification, the warden or the
13warden’s representative shall notify the prisoner of the recall and
14resentencing procedures, and shall arrange for the prisoner to
15designate a family member or other outside agent to be notified
16as to the prisoner’s medical condition and prognosis, and as to the
17recall and resentencing procedures. If the inmate is deemed
18mentally unfit, the warden or the warden’s representative shall
19contact the inmate’s emergency contact and provide the information
20described in paragraph (2).

21(5) The warden or the warden’s representative shall provide the
22prisoner and his or her family member, agent, or emergency
23contact, as described in paragraph (4), updated information
24throughout the recall and resentencing process with regard to the
25prisoner’s medical condition and the status of the prisoner’s recall
26and resentencing proceedings.

27(6) Notwithstanding any other provisions of this section, the
28prisoner or his or her family member or designee may
29independently request consideration for recall and resentencing
30by contacting the chief medical officer at the prison or the
31secretary. Upon receipt of the request, the chief medical officer
32and the warden or the warden’s representative shall follow the
33 procedures described in paragraph (4). If the secretary determines
34that the prisoner satisfies the criteria set forth in paragraph (2), the
35secretary or board may recommend to the court that the prisoner’s
36sentence be recalled. The secretary shall submit a recommendation
37for release within 30 days in the case of inmates sentenced to
38determinate terms and, in the case of inmates sentenced to
39indeterminate terms, the secretary shall make a recommendation
40to the Board of Parole Hearings with respect to the inmates who
P9    1have applied under this section. The board shall consider this
2information and make an independent judgment pursuant to
3paragraph (2) and make findings related thereto before rejecting
4the request or making a recommendation to the court. This action
5shall be taken at the next lawfully noticed board meeting.

6(7) Any recommendation for recall submitted to the court by
7the secretary or the Board of Parole Hearings shall include one or
8 more medical evaluations, a postrelease plan, and findings pursuant
9to paragraph (2).

10(8) If possible, the matter shall be heard before the same judge
11of the court who sentenced the prisoner.

12(9) If the court grants the recall and resentencing application,
13the prisoner shall be released by the department within 48 hours
14of receipt of the court’s order, unless a longer time period is agreed
15to by the inmate. At the time of release, the warden or the warden’s
16representative shall ensure that the prisoner has each of the
17following in his or her possession: a discharge medical summary,
18full medical records, state identification, parole or postrelease
19community supervision medications, and all property belonging
20to the prisoner. After discharge, any additional records shall be
21 sent to the prisoner’s forwarding address.

22(10) The secretary shall issue a directive to medical and
23correctional staff employed by the department that details the
24guidelines and procedures for initiating a recall and resentencing
25procedure. The directive shall clearly state that any prisoner who
26is given a prognosis of six months or less to live is eligible for
27recall and resentencing consideration, and that recall and
28resentencing procedures shall be initiated upon that prognosis.

29(11) The provisions of this subdivision shall be available to an
30inmate who is sentenced to a county jail pursuant to subdivision
31(h). For purposes of those inmates, “secretary” or “warden” shall
32mean the county correctional administrator and “chief medical
33officer” shall mean a physician designated by the county
34correctional administrator for this purpose.

35(f) Notwithstanding any other provision of this section, for
36purposes of paragraph (3) of subdivision (h), any allegation that
37a defendant is eligible for state prison due to a prior or current
38conviction, sentence enhancement, or because he or she is required
39to register as a sex offender shall not be subject to dismissal
40pursuant 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.

23

SEC. 2.  

Section 1170 of the Penal Code, as amended by Section
242 of Chapter 378 of the Statutes of 2015, is amended to read:

25

1170.  

(a) (1) The Legislature finds and declares that the
26purposes of imprisonment for crime are punishment and
27rehabilitation. Those purposes are best served by terms
28proportionate to the seriousness of the offense with provision for
29uniformity in the sentences of offenders committing the same
30offense under similar circumstances, and a correctional treatment
31program designed to address the particular criminogenic needs of
32offenders.

33(2) The Legislature further finds and declares that programs
34should be available for inmates, including, but not limited to,
35educational programs, that are designed to prepare nonviolent
36felony offenders for successful reentry into the community. The
37Legislature encourages the development of policies and programs
38designed to educate and rehabilitate nonviolent felony offenders.
39In implementing this section, the Department of Corrections and
40Rehabilitation is encouraged to give priority enrollment in
P12   1programs to promote successful return to the community to an
2inmate with a short remaining term of commitment and a release
3date that would allow him or her adequate time to complete the
4program.

5(3) In any case in which the punishment prescribed by statute
6for a person convicted of a public offense is a term of imprisonment
7in the state prison, or a term pursuant to subdivision (h), of any
8specification of three time periods, the court shall sentence the
9defendant to one of the terms of imprisonment specified unless
10the convicted person is given any other disposition provided by
11law, including a fine, jail, probation, or the suspension of
12imposition or execution of sentence or is sentenced pursuant to
13subdivision (b) of Section 1168 because he or she had committed
14his or her crime prior to July 1, 1977. In sentencing the convicted
15person, the court shall apply the sentencing rules of the Judicial
16Council. The court, unless it determines that there are
17circumstances in mitigation of the punishment prescribed, shall
18also impose any other term that it is required by law to impose as
19an additional term. Nothing in this article shall affect any provision
20of law that imposes the death penalty, that authorizes or restricts
21the granting of probation or suspending the execution or imposition
22of sentence, or expressly provides for imprisonment in the state
23prison for life, except as provided in paragraph (2) of subdivision
24(d). In any case in which the amount of preimprisonment credit
25under Section 2900.5 or any other provision of law is equal to or
26exceeds any sentence imposed pursuant to this chapter, except for
27a remaining portion of mandatory supervision imposed pursuant
28to subparagraph (B) of paragraph (5) of subdivision (h), the entire
29sentence shall be deemed to have been served, except for the
30remaining period of mandatory supervision, and the defendant
31shall not be actually delivered to the custody of the secretary or
32the county correctional administrator. The court shall advise the
33defendant that he or she shall serve an applicable period of parole,
34postrelease community supervision, or mandatory supervision and
35order the defendant to report to the parole or probation office
36closest to the defendant’s last legal residence, unless the in-custody
37credits equal the total sentence, including both confinement time
38and the period of parole, postrelease community supervision, or
39mandatory supervision. The sentence shall be deemed a separate
40prior prison term or a sentence of imprisonment in a county jail
P13   1under subdivision (h) for purposes of Section 667.5, and a copy
2of the judgment and other necessary documentation shall be
3forwarded to the secretary.

4(b) When a judgment of imprisonment is to be imposed and the
5statute specifies three possible terms, the court shall order
6imposition of the middle term, unless there are circumstances in
7aggravation or mitigation of the crime. At least four days prior to
8the time set for imposition of judgment, either party or the victim,
9or the family of the victim if the victim is deceased, may submit
10a statement in aggravation or mitigation to dispute facts in the
11record or the probation officer’s report, or to present additional
12facts. In determining whether there are circumstances that justify
13imposition of the upper or lower term, the court may consider the
14record in the case, the probation officer’s report, other reports,
15including reports received pursuant to Section 1203.03, and
16statements in aggravation or mitigation submitted by the
17prosecution, the defendant, or the victim, or the family of the victim
18if the victim is deceased, and any further evidence introduced at
19the sentencing hearing. The court shall set forth on the record the
20facts and reasons for imposing the upper or lower term. The court
21may not impose an upper term by using the fact of any
22enhancement upon which sentence is imposed under any provision
23of law. A term of imprisonment shall not be specified if imposition
24of sentence is suspended.

25(c) The court shall state the reasons for its sentence choice on
26the record at the time of sentencing. The court shall also inform
27the defendant that as part of the sentence after expiration of the
28term he or she may be on parole for a period as provided in Section
293000 or 3000.08 or postrelease community supervision for a period
30as provided in Section 3451.

31(d) (1) When a defendant subject to this section or subdivision
32(b) of Section 1168 has been sentenced to be imprisoned in the
33state prison or county jail pursuant to subdivision (h) and has been
34committed to the custody of the secretary or the county correctional
35administrator, the court may, within 120 days of the date of
36commitment on its own motion, or at any time upon the
37recommendation of the secretary or the Board of Parole Hearings
38in the case of state prison inmates, or the county correctional
39 administrator in the case of county jail inmates, recall the sentence
40and commitment previously ordered and resentence the defendant
P14   1in the same manner as if he or she had not previously been
2sentenced, provided the new sentence, if any, is no greater than
3the initial sentence. The court resentencing under this subdivision
4shall apply the sentencing rules of the Judicial Council so as to
5eliminate disparity of sentences and to promote uniformity of
6sentencing. Credit shall be given for time served.

7(2) (A) (i) When a defendant who was under 18 years of age
8at the time of the commission of the offense for which the
9defendant was sentenced to imprisonment for life without the
10possibility of parole has served at least 15 years of that sentence,
11the defendant may submit to the sentencing court a petition for
12recall and resentencing.

13(ii) Notwithstanding clause (i), this paragraph shall not apply
14to defendants sentenced to life without parole for an offense where
15the defendant tortured, as described in Section 206, his or her
16victim or the victim was a public safety official, including any law
17enforcement personnel mentioned in Chapter 4.5 (commencing
18with Section 830) of Title 3, or any firefighter as described in
19Section 245.1, as well as any other officer in any segment of law
20enforcement who is employed by the federal government, the state,
21or any of its political subdivisions.

22(B) The defendant shall file the original petition with the
23sentencing court. A copy of the petition shall be served on the
24agency that prosecuted the case. The petition shall include the
25defendant’s statement that he or she was under 18 years of age at
26the time of the crime and was sentenced to life in prison without
27the possibility of parole, the defendant’s statement describing his
28 or her remorse and work towards rehabilitation, and the defendant’s
29statement that one of the following is true:

30(i) The defendant was convicted pursuant to felony murder or
31aiding and abetting murder provisions of law.

32(ii) The defendant does not have juvenile felony adjudications
33for assault or other felony crimes with a significant potential for
34personal harm to victims prior to the offense for which the sentence
35is being considered for recall.

36(iii) The defendant committed the offense with at least one adult
37codefendant.

38(iv) The defendant has performed acts that tend to indicate
39rehabilitation or the potential for rehabilitation, including, but not
40limited to, availing himself or herself of rehabilitative, educational,
P15   1or vocational programs, if those programs have been available at
2his or her classification level and facility, using self-study for
3self-improvement, or showing evidence of remorse.

4(C) If any of the information required in subparagraph (B) is
5missing from the petition, or if proof of service on the prosecuting
6agency is not provided, the court shall return the petition to the
7defendant and advise the defendant that the matter cannot be
8considered without the missing information.

9(D) A reply to the petition, if any, shall be filed with the court
10within 60 days of the date on which the prosecuting agency was
11served with the petition, unless a continuance is granted for good
12cause.

13(E) If the court finds by a preponderance of the evidence that
14the statements in the petition are true, the court shall hold a hearing
15to consider whether to recall the sentence and commitment
16previously ordered and to resentence the defendant in the same
17manner as if the defendant had not previously been sentenced,
18provided that the new sentence, if any, is not greater than the initial
19sentence. Victims, or victim family members if the victim is
20deceased, shall retain the rights to participate in the hearing.

21(F) The factors that the court may consider when determining
22whether to recall and resentence include, but are not limited to,
23the following:

24(i) The defendant was convicted pursuant to felony murder or
25aiding and abetting murder provisions of law.

26(ii) The defendant does not have juvenile felony adjudications
27for assault or other felony crimes with a significant potential for
28personal harm to victims prior to the offense for which the sentence
29is being considered for recall.

30(iii) The defendant committed the offense with at least one adult
31codefendant.

32(iv) Prior to the offense for which the sentence is being
33considered for recall, the defendant had insufficient adult support
34or supervision and had suffered from psychological or physical
35trauma, or significant stress.

36(v) The defendant suffers from cognitive limitations due to
37mental illness, developmental disabilities, or other factors that did
38not constitute a defense, but influenced the defendant’s
39involvement in the offense.

P16   1(vi) The defendant has performed acts that tend to indicate
2rehabilitation or the potential for rehabilitation, including, but not
3limited to, availing himself or herself of rehabilitative, educational,
4or vocational programs, if those programs have been available at
5his or her classification level and facility, using self-study for
6self-improvement, or showing evidence of remorse.

7(vii) The defendant has maintained family ties or connections
8with others through letter writing, calls, or visits, or has eliminated
9contact with individuals outside of prison who are currently
10involved with crime.

11(viii) The defendant has had no disciplinary actions for violent
12activities in the last five years in which the defendant was
13determined to be the aggressor.

14(G) The court shall have the discretion to recall the sentence
15and commitment previously ordered and to resentence the
16defendant in the same manner as if the defendant had not
17previously been sentenced, provided that the new sentence, if any,
18is not greater than the initial sentence. The discretion of the court
19shall be exercised in consideration of the criteria in subparagraph
20(B). Victims, or victim family members if the victim is deceased,
21shall be notified of the resentencing hearing and shall retain their
22rights to participate in the hearing.

23(H) If the sentence is not recalled, the defendant may submit
24another petition for recall and resentencing to the sentencing court
25when the defendant has been committed to the custody of the
26department for at least 20 years. If recall and resentencing is not
27granted under that petition, the defendant may file another petition
28after having served 24 years. The final petition may be submitted,
29and the response to that petition shall be determined, during the
3025th year of the defendant’s sentence.

31(I) In addition to the criteria in subparagraph (F), the court may
32consider any other criteria that the court deems relevant to its
33decision, so long as the court identifies them on the record,
34provides a statement of reasons for adopting them, and states why
35the defendant does or does not satisfy the criteria.

36(J) This subdivision shall have retroactive application.

37(e) (1) Notwithstanding any other law and consistent with
38paragraph (1) of subdivision (a), if the secretary or the Board of
39Parole Hearings or both determine that a prisoner satisfies the
P17   1criteria set forth in paragraph (2), the secretary or the board may
2recommend to the court that the prisoner’s sentence be recalled.

3(2) The court shall have the discretion to resentence or recall if
4the court finds that the facts described in subparagraphs (A) and
5(B) or subparagraphs (B) and (C) exist:

6(A) The prisoner is terminally ill with an incurable condition
7caused by an illness or disease that would produce death within
8six months, as determined by a physician employed by the
9department.

10(B) The conditions under which the prisoner would be released
11or receive treatment do not pose a threat to public safety.

12(C) The prisoner is permanently medically incapacitated with
13a medical condition that renders him or her permanently unable
14to perform activities of basic daily living, and results in the prisoner
15requiring 24-hour total care, including, but not limited to, coma,
16persistent vegetative state, brain death, ventilator-dependency, loss
17of control of muscular or neurological function, and that
18incapacitation did not exist at the time of the original sentencing.

19The Board of Parole Hearings shall make findings pursuant to
20this subdivision before making a recommendation for resentence
21or recall to the court. This subdivision does not apply to a prisoner
22sentenced to death or a term of life without the possibility of parole.

23(3) Within 10 days of receipt of a positive recommendation by
24the secretary or the board, the court shall hold a hearing to consider
25whether the prisoner’s sentence should be recalled.

26(4) Any physician employed by the department who determines
27that a prisoner has six months or less to live shall notify the chief
28medical officer of the prognosis. If the chief medical officer
29concurs with the prognosis, he or she shall notify the warden.
30Within 48 hours of receiving notification, the warden or the
31warden’s representative shall notify the prisoner of the recall and
32resentencing procedures, and shall arrange for the prisoner to
33designate a family member or other outside agent to be notified
34as to the prisoner’s medical condition and prognosis, and as to the
35recall and resentencing procedures. If the inmate is deemed
36mentally unfit, the warden or the warden’s representative shall
37contact the inmate’s emergency contact and provide the information
38described in paragraph (2).

39(5) The warden or the warden’s representative shall provide the
40prisoner and his or her family member, agent, or emergency
P18   1contact, as described in paragraph (4), updated information
2throughout the recall and resentencing process with regard to the
3prisoner’s medical condition and the status of the prisoner’s recall
4and resentencing proceedings.

5(6) Notwithstanding any other provisions of this section, the
6prisoner or his or her family member or designee may
7independently request consideration for recall and resentencing
8by contacting the chief medical officer at the prison or the
9secretary. Upon receipt of the request, the chief medical officer
10and the warden or the warden’s representative shall follow the
11procedures described in paragraph (4). If the secretary determines
12that the prisoner satisfies the criteria set forth in paragraph (2), the
13secretary or board may recommend to the court that the prisoner’s
14sentence be recalled. The secretary shall submit a recommendation
15for release within 30 days in the case of inmates sentenced to
16determinate terms and, in the case of inmates sentenced to
17indeterminate terms, the secretary shall make a recommendation
18to the Board of Parole Hearings with respect to the inmates who
19have applied under this section. The board shall consider this
20information and make an independent judgment pursuant to
21paragraph (2) and make findings related thereto before rejecting
22the request or making a recommendation to the court. This action
23shall be taken at the next lawfully noticed board meeting.

24(7) Any recommendation for recall submitted to the court by
25the secretary or the Board of Parole Hearings shall include one or
26more medical evaluations, a postrelease plan, and findings pursuant
27to paragraph (2).

28(8) If possible, the matter shall be heard before the same judge
29of the court who sentenced the prisoner.

30(9) If the court grants the recall and resentencing application,
31the prisoner shall be released by the department within 48 hours
32of receipt of the court’s order, unless a longer time period is agreed
33to by the inmate. At the time of release, the warden or the warden’s
34representative shall ensure that the prisoner has each of the
35following in his or her possession: a discharge medical summary,
36full medical records, state identification, parole or postrelease
37community supervision medications, and all property belonging
38to the prisoner. After discharge, any additional records shall be
39sent to the prisoner’s forwarding address.

P19   1(10) The secretary shall issue a directive to medical and
2correctional staff employed by the department that details the
3guidelines and procedures for initiating a recall and resentencing
4procedure. The directive shall clearly state that any prisoner who
5is given a prognosis of six months or less to live is eligible for
6recall and resentencing consideration, and that recall and
7resentencing procedures shall be initiated upon that prognosis.

8(11) The provisions of this subdivision shall be available to an
9inmate who is sentenced to a county jail pursuant to subdivision
10(h). For purposes of those inmates, “secretary” or “warden” shall
11mean the county correctional administrator and “chief medical
12officer” shall mean a physician designated by the county
13correctional administrator for this purpose.

14(f) Notwithstanding any other provision of this section, for
15purposes of paragraph (3) of subdivision (h), any allegation that
16a defendant is eligible for state prison due to a prior or current
17conviction, sentence enhancement, or because he or she is required
18to register as a sex offender shall not be subject to dismissal
19pursuant to Section 1385.

20(g) A sentence to state prison for a determinate term for which
21only one term is specified, is a sentence to state prison under this
22section.

23(h) (1) Except as provided in paragraph (3), a felony punishable
24pursuant to this subdivision where the term is not specified in the
25underlying offense shall be punishable by a term of imprisonment
26in a county jail for 16 months, or two or three years.

27(2) Except as provided in paragraph (3), a felony punishable
28pursuant to this subdivision shall be punishable by imprisonment
29in a county jail for the term described in the underlying offense.

30(3) Notwithstanding paragraphs (1) and (2), where the defendant
31(A) has a prior or current felony conviction for a serious felony
32described in subdivision (c) of Section 1192.7 or a prior or current
33conviction for a violent felony described in subdivision (c) of
34Section 667.5, (B) has a prior felony conviction in another
35jurisdiction for an offense that has all the elements of a serious
36felony described in subdivision (c) of Section 1192.7 or a violent
37felony described in subdivision (c) of Section 667.5, (C) is required
38to register as a sex offender pursuant to Chapter 5.5 (commencing
39with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime
40and as part of the sentence an enhancement pursuant to Section
P20   1186.11 is imposed, an executed sentence for a felony punishable
2pursuant to this subdivision shall be served in state prison.

3(4) Nothing in this subdivision shall be construed to prevent
4other dispositions authorized by law, including pretrial diversion,
5deferred entry of judgment, or an order granting probation pursuant
6to Section 1203.1.

7(5) (A) Unless the court finds, in the interest of justice, that it
8is not appropriate in a particular case, the court, when imposing a
9sentence pursuant to paragraph (1) or (2), shall suspend execution
10of a concluding portion of the term for a period selected at the
11court’s discretion.

12(B) The portion of a defendant’s sentenced term that is
13suspended pursuant to this paragraph shall be known as mandatory
14supervision, and, unless otherwise ordered by the court, shall
15commence upon release from physical custody or an alternative
16custody program, whichever is later. During the period of
17mandatory supervision, the defendant shall be supervised by the
18county probation officer in accordance with the terms, conditions,
19and procedures generally applicable to persons placed on probation,
20for the remaining unserved portion of the sentence imposed by the
21court. The period of supervision shall be mandatory, and may not
22be earlier terminated except by court order. Any proceeding to
23revoke or modify mandatory supervision under this subparagraph
24shall be conducted pursuant to either subdivisions (a) and (b) of
25Section 1203.2 or Section 1203.3. During the period when the
26defendant is under that supervision, unless in actual custody related
27to the sentence imposed by the court, the defendant shall be entitled
28to only actual time credit against the term of imprisonment imposed
29by the court. Any time period which is suspended because a person
30has absconded shall not be credited toward the period of
31supervision.

32(6) The sentencing changes made by the act that added this
33subdivision shall be applied prospectively to any person sentenced
34on or after October 1, 2011.

35(7) The sentencing changes made to paragraph (5) by the act
36that added this paragraph shall become effective and operative on
37January 1, 2015, and shall be applied prospectively to any person
38sentenced on or after January 1, 2015.

39(i) This section shall become operative on January 1, 2017.

40begin insert

begin insertSEC. 3.end insert  

end insert

begin insertSection 5000.1 is added to the end insertbegin insertPenal Codeend insertbegin insert, to read:end insert

begin insert
P21   1

begin insert5000.1.end insert  

The mission of the Department of Corrections and
2Rehabilitation is to promote public safety by providing a safe and
3constructive prison environment that fosters positive and enduring
4behavioral change among offenders, both in prison and after their
5return to the community. All staff of the department perform equally
6vital and integrated responsibilities in achieving the restorative
7and rehabilitative goals of the department and shall be supported
8in realizing the highest levels of professional performance and
9personal satisfaction consistent with this section.

end insert


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