Amended in Assembly August 18, 2016

Amended in Senate March 28, 2016

Senate Bill No. 1324

Introduced by Senator Hancock

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(Principal coauthor: Assembly Member Bonta)

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February 19, 2016

begin delete An act to amend Section 1170 of, and to add Section 5000.1 to, the Penal Code, relating to incarceration. end delete begin insert An act to amend Section 13957.9 of the Government Code, relating to crime victims, and making an appropriation therefor. end insert

LEGISLATIVE COUNSEL’S DIGEST

SB 1324, as amended, Hancock. begin delete Incarceration: rehabilitation. end delete begin insert Crime victims: compensation for pecuniary loss. end insert

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Existing law generally provides for the reimbursement of victims and derivative victims of specified types of crimes by the California Victim Compensation Board from the Restitution Fund, a continuously appropriated fund, for specified losses suffered as a result of those crimes. Existing law, until January 1, 2017, authorizes the board to grant from the fund for pecuniary losses, when the board determines it will best aid the person seeking compensation, reimbursement for outpatient psychiatric, psychological, or other mental health counseling-related expenses incurred by the victim or derivative victim, as specified. Existing law sets forth eligibility requirements and limits on the amount of compensation the board may award, and requires the application for compensation to be verified under penalty of perjury.

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This bill would extend the board’s authority to grant reimbursement for those outpatient psychiatric, psychological, or other mental health counseling-related expenses until January 1, 2019. By expanding the authorization for the use of moneys in the Restitution Fund, a continuously appropriated fund, this bill would make an appropriation. Because an application for reimbursement is required to be submitted under penalty of perjury, this bill would expand the definition of a crime and thus impose a state-mandated local program.

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The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

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This bill would provide that no reimbursement is required by this act for a specified reason.

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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.

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This bill would find and declare that an additional 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.

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

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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.

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Vote:  begin delete majority end delete begin insert ²⁄₃ end insert . Appropriation:  begin delete no end delete begin insert yes end insert . Fiscal committee:  begin delete no end delete begin insert yes end insert . State-mandated local program:  begin delete no end delete begin insert yes end insert .

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

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begin insert SECTION 1. end insert   

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begin insert Section 13957.9 of the end insert begin insert Government Code end insert begin insert is
amended to read: end insert

13957.9.  

(a)  In addition to the authorization provided in
Section 13957 and subject to the limitations set forth in Section
13957.2, the board may grant for pecuniary loss, when the board
determines it will best aid the person seeking compensation,
reimbursement of the amount of outpatient psychiatric,
psychological, or other mental health counseling-related expenses
incurred by the victim or derivative victim, including peer
counseling services provided by violence peer counseling services
provided by a service organization for victims of violent crime,
and including family psychiatric, psychological, or mental health
counseling for the successful treatment of the victim provided to
family members of the victim in the presence of the victim, whether
or not the family member relationship existed at the time of the
crime, that became necessary as a direct result of the crime, subject
to the following conditions:

(1) The following persons may be reimbursed for the expense
of their outpatient mental health counseling in an amount not to
exceed ten thousand dollars ($10,000):

(A) A victim.

(B) A derivative victim who is the surviving parent, sibling,
child, spouse, fiancé, or fiancée of a victim of a crime that directly
resulted in the death of the victim.

(C) A derivative victim, as described in paragraphs (1) to (4),
inclusive, of subdivision (c) of Section 13955, who is the primary
caretaker of a minor victim whose claim is not denied or reduced
pursuant to Section 13956 in a total amount not to exceed ten
thousand dollars ($10,000) for not more than two derivative
victims.

(2) The following persons may be reimbursed for the expense
of their outpatient mental health counseling in an amount not to
exceed five thousand dollars ($5,000):

(A) A derivative victim not eligible for reimbursement pursuant
to paragraph (1), provided that mental health counseling of a
derivative victim described in paragraph (5) of subdivision (c) of
Section 13955, shall be reimbursed only if that counseling is
necessary for the treatment of the victim.

(B) A victim of a crime of unlawful sexual intercourse with a
minor committed in violation of subdivision (d) of Section 261.5
of the Penal Code. A derivative victim of a crime committed in
violation of subdivision (d) of Section 261.5 of the Penal Code
shall not be eligible for reimbursement of mental health counseling
expenses.

(C) A minor who suffers emotional injury as a direct result of
witnessing a violent crime and who is not eligible for
reimbursement of the costs of outpatient mental health counseling
under any other provision of this chapter. To be eligible for
reimbursement under this clause, the minor must have been in
close proximity to the victim when he or she witnessed the crime.

(3) The board may reimburse a victim or derivative victim for
outpatient mental health counseling in excess of that authorized
by paragraph (1) or (2) or for inpatient psychiatric, psychological,
or other mental health counseling if the claim is based on dire or
exceptional circumstances that require more extensive treatment,
as approved by the board.

(4) Expenses for psychiatric, psychological, or other mental
health counseling-related services may be reimbursed only if the
services were provided by either of the following individuals:

(A) A person who would have been authorized to provide those
services pursuant to former Article 1 (commencing with Section
13959) as it read on January 1, 2002.

(B) A person who is licensed by the state to provide those
services, or who is properly supervised by a person who is so
licensed, subject to the board’s approval and subject to the
limitations and restrictions the board may impose.

(b) The total award to or on behalf of each victim or derivative
victim may not exceed thirty-five thousand dollars ($35,000),
except that this amount may be increased to seventy thousand
dollars ($70,000) if federal funds for that increase are available.

(c) For the purposes of this section, the following definitions
shall apply:

(1) “Service organization for victims of violent crime” means
a nonprofit and charitable organization that meets both of the
following criteria:

(A) Its primary mission is to provide services to victims of
violent crime.

(B) It provides programs or services to victims of violent crime
and their families, and other programs, whether or not a similar
program exists in an agency that provides additional services.

(2) “Violence peer counseling services” means counseling by
a violence peer counselor for the purpose of rendering advice or
assistance for victims of violent crime and their families. Any
violence peer counseling services that fall under the scope of
practice of the Licensed Marriage and Family Therapist Act
(Chapter 13 (commencing with Section 4980) of Division 2 of the
Business and Professions Code), the Educational Psychologist
Practice Act (Chapter 13.5 (commencing with Section 4989.10)
of Division 2 of the Business and Professions Code), the Clinical
Social Worker Practice Act (Chapter 14 (commencing with Section
4991) of Division 2 of the Business and Professions Code), and
the Licensed Professional Clinical Counselor Act (Chapter 16
(commencing with Section 4999.10) of Division 2 of the Business
and Professions Code), which are not performed in an exempt
setting as defined in Sections 4980.01, 4996.14, and 4999.22 of
the Business and Professions Code, shall only be performed by a
licensee or a registrant of the Board of Behavioral Sciences or
other appropriately licensed professional, such as a licensed
psychologist or board certified psychiatrist.

(3) “Violence peer counselor” means a provider of supportive
and nonpsychotherapeutic peer counseling services who is
employed by a service organization for victims of violent crime,
whether financially compensated or not, and who meets all of the
following requirements:

(A) Possesses at least six months of full-time equivalent
experience in providing peer support services acquired through
employment, volunteer work, or as part of an internship experience.

(B) Completed a training program aimed at preparing an
individual who was once a mental health services consumer to use
his or her life experience with mental health treatment, combined
with other strengths and skills, to promote the mental health
recovery of other mental health services consumers who are in
need of peer-based services relating to recovery as a victim of a
violent crime.

(C) Possesses 40 hours of training on all of the following:

(i) The profound neurological, biological, psychological, and
social effects of trauma and violence.

(ii) Peace-building and violence prevention strategies, including,
but not limited to, conflict mediation and retaliation prevention
related to gangs and gang-related violence.

(iii) Post-traumatic stress disorder and vicarious trauma,
especially as related to gangs and gang-related violence.

(iv) Case management practices, including, but not limited to,
ethics and victim compensation advocacy.

(D) When providing violence peer counseling services, is
supervised by a marriage and family therapist licensed pursuant
to Chapter 13 (commencing with Section 4980) of Division 2 of
the Business and Professions Code, a licensed educational
psychologist licensed pursuant to Chapter 13.5 (commencing with
Section 4989.10) of Division 2 of the Business and Professions
Code, a clinical social worker licensed pursuant to Chapter 14
(commencing with Section 4991) of Division 2 of the Business
and Professions Code, or a licensed professional clinical counselor
licensed pursuant to Chapter 16 (commencing with Section
4999.10) of Division 2 of the Business and Professions Code. For
the purposes of this subparagraph, a licensed marriage and family
therapist, licensed educational psychologist, licensed clinical social
worker, or licensed professional clinical counselor shall be
employed by the same service organization as the violence peer
counselor.

(d) This section shall remain in effect only until January 1, begin delete 2017, end delete
begin insert 2019, end insert and as of that date is repealed, unless a later enacted statute,
that is enacted before January 1, begin delete 2017, end delete begin insert 2019, end insert deletes or extends
that date.

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begin insert SEC. 2. end insert   

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No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.

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SECTION 1.  

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

1170.  

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

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

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

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

(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform
the defendant that as part of the sentence after expiration of the
term he or she may be on parole for a period as provided in Section
3000 or 3000.08 or postrelease community supervision for a period
as provided in Section 3451.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(J) This subdivision shall have retroactive application.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(i) This section shall remain in effect only until January 1, 2017,
and as of that date is repealed, unless a later enacted statute, that
is enacted before that date, deletes or extends that date.

SEC. 2.  

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

1170.  

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

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

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

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

(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform
the defendant that as part of the sentence after expiration of the
term he or she may be on parole for a period as provided in Section
3000 or 3000.08 or postrelease community supervision for a period
as provided in Section 3451.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

(J) This subdivision shall have retroactive application.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

SEC. 3.  

Section 5000.1 is added to the Penal Code, to read:

5000.1.  

The mission of the Department of Corrections and
Rehabilitation 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. All staff of the department perform
equally vital and integrated responsibilities in achieving the
restorative and rehabilitative goals of the department and shall be
supported in realizing the highest levels of professional
performance and personal satisfaction consistent with this section.

end delete