BILL NUMBER: AB 1166 AMENDED
BILL TEXT
AMENDED IN SENATE JULY 9, 2009
INTRODUCED BY Assembly Member Nielsen
FEBRUARY 27, 2009
An act to amend Sections 3041 and 3041.5 of the Penal Code,
relating to parole.
LEGISLATIVE COUNSEL'S DIGEST
AB 1166, as amended, Nielsen. Parole: hearings: review.
Existing law provides that, one year prior to the minimum eligible
parole release date of an inmate serving an indeterminate sentence,
a panel of 2 or more commissioners or deputy commissioners of the
Board of Parole Hearings shall meet with the inmate and set a parole
release date, as specified. Existing law provides that in the event
of a tie vote, the matter shall be referred to the board for an en
banc hearing, as specified.
This bill would, instead, provide that in the event of a tie vote,
the matter shall be referred to the board for an en banc review
of limited to the record , as
specified, that was before the panel that rendered the tie
vote. The bill would require the board to vote, upon the en banc
review of the record, to either grant or deny parole and render a
statement of decision. The bill would require the board to
separately state reasons for its decision to grant or deny parole.
The bill would require that the commissioner involved in the tie vote
be recused from consideration of the matter in the en banc review.
Existing law, as amended by Proposition 9, the Victim's Bill of
Rights Act of 2008: Marsy's Law, of the November 4, 2008, statewide
general election, establishes procedures at all hearings for the
purpose of reviewing a prisoner's parole suitability, or the setting,
postponing, or rescinding of parol dates, and provides prisoners and
victims specified rights at these hearings.
This bill would exempt en banc reviews of tie votes from these
provisions.
Proposition 9 permits the Legislature, by a statute enacted by a
vote of 3/4 of the membership of each house and in accordance with
specified procedures, to amend the provisions of the act. Because
this bill would eliminate these en banc hearings and
exempt en banc reviews from the application of this act's statutory
provisions, it would require a 3/4 vote.
Vote: 3/4. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3041 of the Penal Code is amended to read:
3041. (a) In the case of any inmate sentenced pursuant to any
provision of law, other than Chapter 4.5 (commencing with Section
1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet
with each inmate during the third year of incarceration for the
purposes of reviewing the inmate's file, making recommendations, and
documenting activities and conduct pertinent to granting or
withholding postconviction credit. One year prior to the inmate's
minimum eligible parole release date a panel of two or more
commissioners or deputy commissioners shall again meet with the
inmate and shall normally set a parole release date as provided in
Section 3041.5. No more than one member of the panel shall be a
deputy commissioner. In the event of a tie vote, the matter shall be
referred for an en banc review of the record that was before the
panel that rendered the tie vote. Upon en banc review, the board
shall vote to either grant or deny parole and render a statement of
decision. The en banc review shall be conducted pursuant to
subdivision (e). The release date shall be set in a manner that
will provide uniform terms for offenses of similar gravity and
magnitude in with respect to their
threat to the public, and that will comply with the sentencing rules
that the Judicial Council may issue and any sentencing information
relevant to the setting of parole release dates. The board shall
establish criteria for the setting of parole release dates and in
doing so shall consider the number of victims of the crime for which
the inmate was sentenced and other factors in mitigation or
aggravation of the crime. At least one commissioner of the panel
shall have been present at the last preceding meeting, unless it is
not feasible to do so or where the last preceding meeting was the
initial meeting. Any person on the hearing panel may request review
of any decision regarding parole for an en banc hearing by the board.
In case of a review, a majority vote in favor of parole by the board
members participating in an en banc review is required to grant
parole to any inmate.
(b) The panel or the board, sitting en banc, shall set a release
date unless it determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of current or past
convicted offense or offenses, is such that consideration of the
public safety requires a more lengthy period of incarceration for
this individual, and that a parole date, therefore, cannot be fixed
at this meeting. After the effective date of this subdivision, any
decision of the parole panel finding an inmate suitable for parole
shall become final within 120 days of the date of the hearing. During
that period, the board may review the panel's decision. The panel's
decision shall become final pursuant to this subdivision unless the
board finds that the panel made an error of law, or that the panel's
decision was based on an error of fact, or that new information
should be presented to the board, any of which when corrected or
considered by the board has a substantial likelihood of resulting in
a substantially different decision upon a rehearing. In making this
determination, the board shall consult with the commissioners who
conducted the parole consideration hearing. No decision of the parole
panel shall be disapproved and referred for rehearing except by a
majority vote of the board, sitting en banc, following a public
meeting.
(c) For the purpose of reviewing the suitability for parole of
those inmates eligible for parole under prior law at a date earlier
than that calculated under Section 1170.2, the board shall appoint
panels of at least two persons to meet annually with each inmate
until the time the person is released pursuant to proceedings or
reaches the expiration of his or her term as calculated under Section
1170.2.
(d) It is the intent of the Legislature that , during
times when there is no backlog of inmates awaiting parole hearings,
life parole consideration hearings , or life rescission
hearings, hearings will be conducted by a panel of three or more
members, the majority of whom shall be commissioners. The board shall
report monthly on the number of cases where an inmate has not
received a completed initial or subsequent parole consideration
hearing within 30 days of the hearing date required by subdivision
(a) of Section 3041.5 or paragraph (2) of subdivision (b) of Section
3041.5, unless the inmate has waived the right to those timeframes.
That report shall be considered the backlog of cases for purposes of
this section, and shall include information on the progress toward
eliminating the backlog, and on the number of inmates who have waived
their right to the above timeframes. The report shall be made public
at a regularly scheduled meeting of the board and a written report
shall be made available to the public and transmitted to the
Legislature quarterly.
(e) For purposes of this section, an en banc review by the board
means a review conducted by a majority of commissioners holding
office on the date the matter is heard by the board. An en banc
review shall be conducted in compliance with the following:
(1) The commissioners conducting the review shall consider
the entire record of the hearing that resulted in the tie vote.
(2) The review shall be limited to the record of the hearing.
The record shall consist of the transcript or audiotape of the
hearing, written or electronically recorded statements actually
considered by the panel that produced the tie vote, and any other
material actually considered by the panel. New evidence or comments
shall not be considered in the en banc proceeding.
(3) The board shall separately state reasons for its decision
to grant or deny parole.
(4) A commissioner who was involved in the tie vote shall be
recused from consideration of the matter in the en banc review.
SEC. 2. Section 3041.5 of the Penal Code is amended to read:
3041.5. (a) At all hearings for the purpose of reviewing a
prisoner's parole suitability, or the setting, postponing, or
rescinding of parole dates, with the exception of en banc review of
tie votes, the following shall apply:
(1) At least 10 days prior to any hearing by the Board of Parole
Hearings, the prisoner shall be permitted to review his or her file
which will be examined by the board and shall have the opportunity to
enter a written response to any material contained in the file.
(2) The prisoner shall be permitted to be present, to ask and
answer questions, and to speak on his or her own behalf. Neither the
prisoner nor the attorney for the prisoner shall be entitled to ask
questions of any person appearing at the hearing pursuant to
subdivision (b) of Section 3043.
(3) Unless legal counsel is required by some other provision of
law, a person designated by the Department of Corrections and
Rehabilitation shall be present to insure
ensure that all facts relevant to the decision be presented,
including, if necessary, contradictory assertions as to matters of
fact that have not been resolved by departmental or other procedures.
(4) The prisoner and any person described in subdivision (b) of
Section 3043 shall be permitted to request and receive a stenographic
record of all proceedings.
(5) If the hearing is for the purpose of postponing or rescinding
of parole dates, the prisoner shall have rights set forth in
paragraphs (3) and (4) of subdivision (c) of Section 2932.
(6) The board shall set a date to reconsider whether an inmate
should be released on parole that ensures a meaningful consideration
of whether the inmate is suitable for release on parole.
(b) (1) Within 10 days following any meeting where a parole date
has been set, the board shall send the prisoner a written statement
setting forth his or her parole date, the conditions he or she must
meet in order to be released on the date set, and the consequences of
failure to meet those conditions.
(2) Within 20 days following any meeting where a parole date has
not been set, the board shall send the prisoner a written statement
setting forth the reason or reasons for refusal to set a parole date,
and suggest activities in which he or she might participate that
will benefit him or her while he or she is incarcerated.
(3) The board shall schedule the next hearing, after considering
the views and interests of the victim, as follows:
(A) Fifteen years after any hearing at which parole is denied,
unless the board finds by clear and convincing evidence that the
criteria relevant to the setting of parole release dates enumerated
in subdivision (a) of Section 3041 are such that consideration of the
public and victim's safety does not require a more lengthy period of
incarceration for the prisoner than 10 additional years.
(B) Ten years after any hearing at which parole is denied, unless
the board finds by clear and convincing evidence that the criteria
relevant to the setting of parole release dates enumerated in
subdivision (a) of Section 3041 are such that consideration of the
public and victim's safety does not require a more lengthy period of
incarceration for the prisoner than seven additional years.
(C) Three years, five years, or seven years after any hearing at
which parole is denied, because the criteria relevant to the setting
of parole release dates enumerated in subdivision (a) of Section 3041
are such that consideration of the public and victim's safety
requires a more lengthy period of incarceration for the prisoner, but
does not require a more lengthy period of incarceration for the
prisoner than seven additional years.
(4) The board may in its discretion, after considering the views
and interests of the victim, advance a hearing set pursuant to
paragraph (3) to an earlier date, when a change in circumstances or
new information establishes a reasonable likelihood that
consideration of the public and victim's safety does not require the
additional period of incarceration of the prisoner provided in
paragraph (3).
(5) Within 10 days of any board action resulting in the
postponement of a previously set parole date, the board shall send
the prisoner a written statement setting forth a new date and the
reason or reasons for that action and shall offer the prisoner an
opportunity for review of that action.
(6) Within 10 days of any board action resulting in the rescinding
of a previously set parole date, the board shall send the prisoner a
written statement setting forth the reason or reasons for that
action, and shall schedule the prisoner's next hearing in accordance
with paragraph (3).
(c) The board shall conduct a parole hearing pursuant to this
section as a de novo hearing. Findings made and conclusions reached
in a prior parole hearing shall be considered in but shall not be
deemed to be binding upon subsequent parole hearings for an inmate,
but shall be subject to reconsideration based upon changed facts and
circumstances. When conducting a hearing, the board shall admit the
prior recorded or memorialized testimony or statement of a victim or
witness, upon request of the victim or if the victim or witness has
died or become unavailable. At each hearing the board shall determine
the appropriate action to be taken based on the criteria set forth
in paragraph (3) of subdivision (a) of Section 3041.
(d) (1) An inmate may request that the board exercise its
discretion to advance a hearing set pursuant to paragraph (3) of
subdivision (b) to an earlier date, by submitting a written request
to the board, with notice, upon request, and a copy to the victim
which shall set forth the change in circumstances or new information
that establishes a reasonable likelihood that consideration of the
public safety does not require the additional period of incarceration
of the inmate.
(2) The board shall have sole jurisdiction, after considering the
views and interests of the victim to determine whether to grant or
deny a written request made pursuant to paragraph (1), and its
decision shall be subject to review by a court or magistrate only for
a manifest abuse of discretion by the board. The board shall have
the power to summarily deny a request that does not comply with the
provisions of this subdivision or that does not set forth a change in
circumstances or new information as required in paragraph (1) that
in the judgment of the board is sufficient to justify the action
described in paragraph (4) of subdivision (b).
(3) An inmate may make only one written request as provided in
paragraph (1) during each three-year period. Following either a
summary denial of a request made pursuant to paragraph (1), or the
decision of the board after a hearing described in subdivision (a) to
not set a parole date, the inmate shall not be entitled to submit
another request for a hearing pursuant to subdivision (a) until a
three-year period of time has elapsed from the summary denial or
decision of the board.