BILL NUMBER: AB 29	CHAPTERED
	BILL TEXT

	CHAPTER   751
	FILED WITH SECRETARY OF STATE   OCTOBER 7, 1997
	APPROVED BY GOVERNOR   OCTOBER 7, 1997
	PASSED THE ASSEMBLY   SEPTEMBER 13, 1997
	PASSED THE SENATE   SEPTEMBER 12, 1997
	AMENDED IN SENATE   SEPTEMBER 11, 1997
	AMENDED IN SENATE   SEPTEMBER 10, 1997
	AMENDED IN SENATE   JULY 1, 1997
	AMENDED IN ASSEMBLY   APRIL 10, 1997

INTRODUCED BY  Assembly Member Villaraigosa

                        DECEMBER 2, 1996

   An act to amend Section 1170 of the Penal Code, relating to
prisoners.



	LEGISLATIVE COUNSEL'S DIGEST


   AB 29, Villaraigosa.  Prisoners:  medical release.
   Existing law provides that a defendant sentenced to imprisonment
in the state prison and committed to the custody of the Director of
Corrections may have his or her sentence recalled and be resentenced.

   This bill would establish a procedure whereby, if the Director of
Corrections or the Board of Prison Terms or both recommend to the
court that a prisoner's sentence be recalled, the court may recall
the sentence if the court finds that the prisoner is terminally ill
and the conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
   This bill would incorporate additional changes in Section 1170 of
the Penal Code proposed by SB 721, to be operative if SB 721 and this
bill are both enacted and become effective on or before January 1,
1998, and this bill is enacted last.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:


  SECTION 1.  Section 1170 of the Penal Code is amended to read:
   1170.  (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment.  This purpose is 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.  The Legislature further
finds and declares 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 as determined by the Legislature to be
imposed by the court with specified discretion.
   (2) Paragraph (1) shall not be construed to preclude programs,
including educational programs, that are designed to rehabilitate
nonviolent, first-time felony offenders.  The Legislature encourages
the development of policies and programs designed to educate and
rehabilitate nonviolent, first-time felony offenders consistent with
the purpose of imprisonment.
   (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 of 16 months, two or three years; two, three, or
four years; two, three, or five years; three, four, or five years;
two, four, or six years; three, four, or six years; three, five, or
seven years; three, six, or eight years; five, seven, or nine years;
five, seven, or 11 years, or any other 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 which it is required by law to
impose as an additional term.  Nothing in this article shall affect
any provision of law which imposes the death penalty, which
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.  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, the entire sentence, including any period of parole
under Section 3000, shall be deemed to have been served and the
defendant shall not be actually delivered to the custody of the
Director of Corrections.  However, that sentence shall be deemed a
separate prior prison term under Section 667.5, and a copy of the
judgment and other necessary documentation shall be forwarded to the
Director of Corrections.
   (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 Section 667.5, 1170.1, 12022, 12022.4,
12022.5, 12022.6, or 12022.7 or under any other section 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.
   (d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the Director of
Corrections, the court may, within 120 days of the date of commitment
on its own motion, or at any time upon the recommendation of the
Director of Corrections or the Board of Prison Terms, 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 resentence 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.
   (e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a) of Section 1170, if the Director of
Corrections or the Board of Prison Terms or both determine that a
prisoner satisfies the criteria set forth in paragraph (2), the
director 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 both of the following:
   (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.
   The Board of Prison Terms 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
director or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
   (4) The prisoner or his or her family member or designee may
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the Director of Corrections.
Upon receipt of the request, if the director determines that the
prisoner satisfies the criteria set forth in paragraph (2), the
director or board may recommend to the court that the prisoner's
sentence be recalled.  The director 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 director may make a recommendation to the
Board of Prison Terms 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.
   (5) Any recommendation for recall submitted to the court by the
Director of Corrections or the Board of Prison Terms shall include
one or more medical evaluations, a postrelease plan, and findings
pursuant to paragraph (2).
   (6) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
   (f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
   (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.
  SEC. 2.  Section 1170 of the Penal Code is amended to read:
   1170.  (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment.  This purpose is 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.  The Legislature further
finds and declares 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 as determined by the Legislature to be
imposed by the court with specified discretion.
   (2) Paragraph (1) shall not be construed to preclude programs,
including educational programs, that are designed to rehabilitate
nonviolent, first-time felony offenders.  The Legislature encourages
the development of policies and programs designed to educate and
rehabilitate nonviolent, first-time felony offenders consistent with
the purpose of imprisonment.
   (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 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 which it is required by law to impose as an
additional term.  Nothing in this article shall affect any provision
of law which imposes the death penalty, which 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.  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, the entire
sentence, including any period of parole under Section 3000, shall
be deemed to have been served and the defendant shall not be actually
delivered to the custody of the Director of Corrections.  However,
that sentence shall be deemed a separate prior prison term under
Section 667.5, and a copy of the judgment and other necessary
documentation shall be forwarded to the Director of Corrections.
   (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 Section 667.5, 1170.1, 12022, 12022.4,
12022.5, 12022.6, or 12022.7, or under any other 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.
   (d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the Director of
Corrections, the court may, within 120 days of the date of commitment
on its own motion, or at any time upon the recommendation of the
Director of Corrections or the Board of Prison Terms, 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 resentence 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.
   (e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a) of Section 1170, if the Director of
Corrections or the Board of Prison Terms or both determine that a
prisoner satisfies the criteria set forth in paragraph (2), the
director 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 both of the following:
   (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.
   The Board of Prison Terms 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
director or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
   (4) The prisoner or his or her family member or designee may
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the Director of Corrections.
Upon receipt of the request, if the director determines that the
prisoner satisfies the criteria set forth in paragraph (2), the
director or board may recommend to the court that the prisoner's
sentence be recalled.  The director 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 director may make a recommendation to the
Board of Prison Terms 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.
   (5) Any recommendation for recall submitted to the court by the
Director of Corrections or the Board of Prison Terms shall include
one or more medical evaluations, a postrelease plan, and findings
pursuant to paragraph (2).
   (6) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
   (f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
   (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.
  SEC. 3.  Section 2 of this bill incorporates amendments to Section
1170 of the Penal Code proposed by both this bill and SB 721.  It
shall only become operative if (1) both bills are enacted and become
effective on or before January 1, 1998, (2) each bill amends Section
1170 of the Penal Code, and (3) this bill is enacted after SB 721, in
which case Section 1 of this bill shall not become operative.