SB 957, as introduced, Vidak. Imprisonment: state prison.
Under existing law, certain specified felonies are punished by imprisonment in a county jail for 16 months, or 2 or 3 years or, where the term is specified, for the term described in the underlying offense. Notwithstanding these provisions, existing law requires that a sentence be served in state prison where the defendant has a prior or current conviction for a serious or violent felony, has a prior felony conviction in another jurisdiction that has all of the elements of a serious or violent felony, is required to register as a sex offender, or has an aggravated white collar crime enhancement imposed as part of the sentence.
This bill would additionally require a defendant to serve his or her sentence in state prison if he or she is convicted of a crime or crimes for which he or she is sentenced to an aggregate term of imprisonment of 10 years or more.
This bill would declare that it is to take effect immediately as an urgency statute.
Vote: 2⁄3. Appropriation: no. Fiscal committee: yes. State-mandated local program: no.
The people of the State of California do enact as follows:
Section 1170 of the Penal Code, as amended by
2Section 5 of Chapter 508 of the Statutes of 2013, is amended to
3read:
(a) (1) The Legislature finds and declares that the
5purpose of imprisonment for crime is punishment. This purpose
6is best served by terms proportionate to the seriousness of the
7offense with provision for uniformity in the sentences of offenders
8committing the same offense under similar circumstances. The
9Legislature further finds and declares that the elimination of
10disparity and the provision of uniformity of sentences can best be
11achieved by determinate sentences fixed by statute in proportion
12to the seriousness of the offense as determined by the Legislature
13to be imposed by the court with specified discretion.
14(2) Notwithstanding paragraph (1), the Legislature further finds
15and declares that programs should be available for inmates,
16
including, but not limited to, educational programs, that are
17designed to prepare nonviolent felony offenders for successful
18reentry into the community. The Legislature encourages the
19development of policies and programs designed to educate and
20rehabilitate nonviolent felony offenders. In implementing this
21section, the Department of Corrections and Rehabilitation is
22encouraged to give priority enrollment in programs to promote
23successful return to the community to an inmate with a short
24remaining term of commitment and a release date that would allow
25him or her adequate time to complete the program.
26(3) In any case in which the punishment prescribed by statute
27for a person convicted of a public offense is a term of imprisonment
28in the state prison of any specification of three time periods, the
29court shall sentence the defendant to one of the terms of
30imprisonment specified unless the convicted person is given any
31other disposition provided by
law, including a fine, jail, probation,
32or the suspension of imposition or execution of sentence or is
33sentenced pursuant to subdivision (b) of Section 1168 because he
34or she had committed his or her crime prior to July 1, 1977. In
35sentencing the convicted person, the court shall apply the
36sentencing rules of the Judicial Council. The court, unless it
37determines that there are circumstances in mitigation of the
38punishment prescribed, shall also impose any other term that it is
P3 1required by law to impose as an additional term. Nothing in this
2article shall affect any provision of law that imposes the death
3penalty, that authorizes or restricts the granting of probation or
4suspending the execution or imposition of sentence, or expressly
5provides for imprisonment in the state prison for life, except as
6provided in paragraph (2) of subdivision (d). In any case in which
7the amount of preimprisonment credit under Section 2900.5 or any
8other provision of law is equal to or exceeds any sentence imposed
9pursuant to
this chapter, the entire sentence shall be deemed to
10have been served and the defendant shall not be actually delivered
11to the custody of the secretary. The court shall advise the defendant
12that he or she shall serve a period of parole and order the defendant
13to report to the parole office closest to the defendant’s last legal
14residence, unless the in-custody credits equal the total sentence,
15including both confinement time and the period of parole. The
16sentence shall be deemed a separate prior prison term under Section
17667.5, and a copy of the judgment and other necessary
18documentation shall be forwarded to the secretary.
19(b) When a judgment of imprisonment is to be imposed and the
20statute specifies three possible terms, the choice of the appropriate
21term shall rest within the sound discretion of the court. At least
22four days prior to the time set for imposition of judgment, either
23party or the victim, or the family of the victim if the victim
is
24deceased, may submit a statement in aggravation or mitigation. In
25determining the appropriate term, the court may consider the record
26in the case, the probation officer’s report, other reports, including
27reports received pursuant to Section 1203.03, and statements in
28aggravation or mitigation submitted by the prosecution, the
29defendant, or the victim, or the family of the victim if the victim
30is deceased, and any further evidence introduced at the sentencing
31hearing. The court shall select the term which, in the court’s
32discretion, best serves the interests of justice. The court shall set
33forth on the record the reasons for imposing the term selected and
34the court may not impose an upper term by using the fact of any
35enhancement upon which sentence is imposed under any provision
36of law. A term of imprisonment shall not be specified if imposition
37of sentence is suspended.
38(c) The court shall state the reasons for its sentence choice on
39the
record at the time of sentencing. The court shall also inform
40the defendant that as part of the sentence after expiration of the
P4 1term he or she may be on parole for a period as provided in Section
23000.
3(d) (1) When a defendant subject to this section or subdivision
4(b) of Section 1168 has been sentenced to be imprisoned in the
5state prison and has been committed to the custody of the secretary,
6the court may, within 120 days of the date of commitment on its
7own motion, or at any time upon the recommendation of the
8secretary or the Board of Parole Hearings, recall the sentence and
9commitment previously ordered and resentence the defendant in
10the same manner as if he or she had not previously been sentenced,
11provided the new sentence, if any, is no greater than the initial
12sentence. The court resentencing under this subdivision shall apply
13the sentencing rules of the Judicial Council so as to eliminate
14disparity of
sentences and to promote uniformity of sentencing.
15Credit shall be given for time served.
16(2) (A) (i) When a defendant who was under 18 years of age
17at the time of the commission of the offense for which the
18defendant was sentenced to imprisonment for life without the
19possibility of parole has served at least 15 years of that sentence,
20the defendant may submit to the sentencing court a petition for
21recall and resentencing.
22(ii) Notwithstanding clause (i), this paragraph shall not apply
23to defendants sentenced to life without parole for an offense where
24the defendant tortured, as described in Section 206, his or her
25victim or the victim was a public safety official, including any law
26enforcement personnel mentioned in Chapter 4.5 (commencing
27with Section 830) of Title 3, or any firefighter as described in
28Section 245.1, as well as any
other officer in any segment of law
29enforcement who is employed by the federal government, the state,
30or any of its political subdivisions.
31(B) The defendant shall file the original petition with the
32sentencing court. A copy of the petition shall be served on the
33agency that prosecuted the case. The petition shall include the
34defendant’s statement that he or she was under 18 years of age at
35the time of the crime and was sentenced to life in prison without
36the possibility of parole, the defendant’s statement describing his
37or her remorse and work towards rehabilitation, and the defendant’s
38statement that one of the following is true:
39(i) The defendant was convicted pursuant to felony murder or
40aiding and abetting murder provisions of law.
P5 1(ii) The defendant does not have juvenile felony adjudications
2for assault or
other felony crimes with a significant potential for
3personal harm to victims prior to the offense for which the sentence
4is being considered for recall.
5(iii) The defendant committed the offense with at least one adult
6codefendant.
7(iv) The defendant has performed acts that tend to indicate
8rehabilitation or the potential for rehabilitation, including, but not
9limited to, availing himself or herself of rehabilitative, educational,
10or vocational programs, if those programs have been available at
11his or her classification level and facility, using self-study for
12self-improvement, or showing evidence of remorse.
13(C) If any of the information required in subparagraph (B) is
14missing from the petition, or if proof of service on the prosecuting
15agency is not provided, the court shall return the petition to the
16defendant
and advise the defendant that the matter cannot be
17considered without the missing information.
18(D) A reply to the petition, if any, shall be filed with the court
19within 60 days of the date on which the prosecuting agency was
20served with the petition, unless a continuance is granted for good
21cause.
22(E) If the court finds by a preponderance of the evidence that
23the statements in the petition are true, the court shall hold a hearing
24to consider whether to recall the sentence and commitment
25previously ordered and to resentence the defendant in the same
26manner as if the defendant had not previously been sentenced,
27provided that the new sentence, if any, is not greater than the initial
28sentence. Victims, or victim family members if the victim is
29deceased, shall retain the rights to participate in the hearing.
30(F) The
factors that the court may consider when determining
31whether to recall and resentence include, but are not limited to,
32the following:
33(i) The defendant was convicted pursuant to felony murder or
34aiding and abetting murder provisions of law.
35(ii) The defendant does not have juvenile felony adjudications
36for assault or other felony crimes with a significant potential for
37personal harm to victims prior to the offense for which the sentence
38is being considered for recall.
39(iii) The defendant committed the offense with at least one adult
40codefendant.
P6 1(iv) Prior to the offense for which the sentence is being
2considered for recall, the defendant had insufficient adult support
3or supervision and had suffered from psychological or physical
4trauma, or significant
stress.
5(v) The defendant suffers from cognitive limitations due to
6mental illness, developmental disabilities, or other factors that did
7not constitute a defense, but influenced the defendant’s
8involvement in the offense.
9(vi) The defendant has performed acts that tend to indicate
10rehabilitation or the potential for rehabilitation, including, but not
11limited to, availing himself or herself of rehabilitative, educational,
12or vocational programs, if those programs have been available at
13his or her classification level and facility, using self-study for
14self-improvement, or showing evidence of remorse.
15(vii) The defendant has maintained family ties or connections
16with others through letter writing, calls, or visits, or has eliminated
17contact with individuals outside of prison who are currently
18involved with crime.
19(viii) The defendant has had no disciplinary actions for violent
20activities in the last five years in which the defendant was
21determined to be the aggressor.
22(G) The court shall have the discretion to recall the sentence
23and commitment previously ordered and to resentence the
24defendant in the same manner as if the defendant had not
25previously been sentenced, provided that the new sentence, if any,
26is not greater than the initial sentence. The discretion of the court
27shall be exercised in consideration of the criteria in subparagraph
28(B). Victims, or victim family members if the victim is deceased,
29shall be notified of the resentencing hearing and shall retain their
30rights to participate in the hearing.
31(H) If the sentence is not recalled, the defendant may submit
32another petition for recall and resentencing to the
sentencing court
33when the defendant has been committed to the custody of the
34department for at least 20 years. If recall and resentencing is not
35granted under that petition, the defendant may file another petition
36after having served 24 years. The final petition may be submitted,
37and the response to that petition shall be determined, during the
3825th year of the defendant’s sentence.
39(I) In addition to the criteria in subparagraph (F), the court may
40consider any other criteria that the court deems relevant to its
P7 1decision, so long as the court identifies them on the record,
2provides a statement of reasons for adopting them, and states why
3the defendant does or does not satisfy the criteria.
4(J) This subdivision shall have retroactive application.
5(e) (1) Notwithstanding any other law and
consistent with
6paragraph (1) of subdivision (a), if the secretary or the Board of
7Parole Hearings or both determine that a prisoner satisfies the
8criteria set forth in paragraph (2), the secretary or the board may
9recommend to the court that the prisoner’s sentence be recalled.
10(2) The court shall have the discretion to resentence or recall if
11the court finds that the facts described in subparagraphs (A) and
12(B) or subparagraphs (B) and (C) exist:
13(A) The prisoner is terminally ill with an incurable condition
14caused by an illness or disease that would produce death within
15six months, as determined by a physician employed by the
16department.
17(B) The conditions under which the prisoner would be released
18or receive treatment do not pose a threat to public safety.
19(C) The prisoner is permanently medically incapacitated with
20a medical condition that renders him or her permanently unable
21to perform activities of basic daily living, and results in the prisoner
22requiring 24-hour total care, including, but not limited to, coma,
23persistent vegetative state, brain death, ventilator-dependency, loss
24of control of muscular or neurological function, and that
25incapacitation did not exist at the time of the original sentencing.
26The Board of Parole Hearings shall make findings pursuant to
27this subdivision before making a recommendation for resentence
28or recall to the court. This subdivision does not apply to a prisoner
29sentenced to death or a term of life without the possibility of parole.
30(3) Within 10 days of receipt of a positive recommendation by
31the secretary or the board, the court shall hold a hearing to
consider
32whether the prisoner’s sentence should be recalled.
33(4) Any physician employed by the department who determines
34that a prisoner has six months or less to live shall notify the chief
35medical officer of the prognosis. If the chief medical officer
36concurs with the prognosis, he or she shall notify the warden.
37Within 48 hours of receiving notification, the warden or the
38warden’s representative shall notify the prisoner of the recall and
39resentencing procedures, and shall arrange for the prisoner to
40designate a family member or other outside agent to be notified
P8 1as to the prisoner’s medical condition and prognosis, and as to the
2recall and resentencing procedures. If the inmate is deemed
3mentally unfit, the warden or the warden’s representative shall
4contact the inmate’s emergency contact and provide the information
5described in paragraph (2).
6(5) The warden or the warden’s
representative shall provide the
7prisoner and his or her family member, agent, or emergency
8contact, as described in paragraph (4), updated information
9throughout the recall and resentencing process with regard to the
10prisoner’s medical condition and the status of the prisoner’s recall
11and resentencing proceedings.
12(6) Notwithstanding any other provisions of this section, the
13prisoner or his or her family member or designee may
14independently request consideration for recall and resentencing
15by contacting the chief medical officer at the prison or the
16secretary. Upon receipt of the request, the chief medical officer
17and the warden or the warden’s representative shall follow the
18procedures described in paragraph (4). If the secretary determines
19that the prisoner satisfies the criteria set forth in paragraph (2), the
20secretary or board may recommend to the court that the prisoner’s
21sentence be recalled. The secretary shall submit a recommendation
22
for release within 30 days in the case of inmates sentenced to
23determinate terms and, in the case of inmates sentenced to
24indeterminate terms, the secretary shall make a recommendation
25to the Board of Parole Hearings with respect to the inmates who
26have applied under this section. The board shall consider this
27information and make an independent judgment pursuant to
28paragraph (2) and make findings related thereto before rejecting
29the request or making a recommendation to the court. This action
30shall be taken at the next lawfully noticed board meeting.
31(7) Any recommendation for recall submitted to the court by
32the secretary or the Board of Parole Hearings shall include one or
33more medical evaluations, a postrelease plan, and findings pursuant
34to paragraph (2).
35(8) If possible, the matter shall be heard before the same judge
36of the court who sentenced the prisoner.
37(9) If the court grants the recall and resentencing application,
38the prisoner shall be released by the department within 48 hours
39of receipt of the court’s order, unless a longer time period is agreed
40to by the inmate. At the time of release, the warden or the warden’s
P9 1representative shall ensure that the prisoner has each of the
2following in his or her possession: a discharge medical summary,
3full medical records, state identification, parole medications, and
4all property belonging to the prisoner. After discharge, any
5additional records shall be sent to the prisoner’s forwarding
6address.
7(10) The secretary shall issue a directive to medical and
8correctional staff employed by the department that details the
9guidelines and procedures for initiating a recall and resentencing
10procedure. The directive shall clearly state that any prisoner who
11is given a prognosis of six months or less
to live is eligible for
12recall and resentencing consideration, and that recall and
13resentencing procedures shall be initiated upon that prognosis.
14(f) Notwithstanding any other provision of this section, for
15purposes of paragraph (3) of subdivision (h), any allegation that
16a defendant is eligible for state prison due to a prior or current
17conviction, sentence enhancement, or because he or she is required
18to register as a sex offender shall not be subject to dismissal
19pursuant to Section 1385.
20(g) A sentence to state prison for a determinate term for which
21only one term is specified, is a sentence to state prison under this
22section.
23(h) (1) Except as provided in paragraph (3), a felony punishable
24pursuant to this subdivision where the term is not specified in the
25underlying offense shall be
punishable by a term of imprisonment
26in a county jail for 16 months, or two or three years.
27(2) Except as provided in paragraph (3), a felony punishable
28pursuant to this subdivision shall be punishable by imprisonment
29in a county jail for the term described in the underlying offense.
30(3) Notwithstanding paragraphs (1) and (2), where the defendant
31(A) has a prior or current felony conviction for a serious felony
32described in subdivision (c) of Section 1192.7 or a prior or current
33conviction for a violent felony described in subdivision (c) of
34Section 667.5, (B) has a prior felony conviction in another
35jurisdiction for an offense that has all the elements of a serious
36felony described in subdivision (c) of Section 1192.7 or a violent
37felony described in subdivision (c) of Section 667.5, (C) is required
38to register as a sex offender pursuant to Chapter 5.5 (commencing
39with Section
290) of Title 9 of Part 1,begin delete orend delete (D) is convicted of a crime
40and as part of the sentence an enhancement pursuant to Section
P10 1186.11 is imposed,begin insert or (E) is convicted of a crime or crimes for
2which he or she is sentenced to an aggregate term of imprisonment
3of 10 years or more,end insert an executed sentence for a felony punishable
4pursuant to this subdivision shall be served in state prison.
5(4) Nothing in this subdivision shall be construed to prevent
6other dispositions authorized by law, including pretrial diversion,
7deferred entry of judgment, or an order granting probation pursuant
8to Section 1203.1.
9(5) The court, when imposing a sentence pursuant to paragraph
10(1) or (2) of this subdivision, may commit
the defendant to county
11jail as follows:
12(A) For a full term in custody as determined in accordance with
13the applicable sentencing law.
14(B) (i) For a term as determined in accordance with the
15applicable sentencing law, but suspend execution of a concluding
16portion of the term selected in the court’s discretion, during which
17time the defendant shall be supervised by the county probation
18officer in accordance with the terms, conditions, and procedures
19generally applicable to persons placed on probation, for the
20remaining unserved portion of the sentence imposed by the court.
21The period of supervision shall be mandatory, and may not be
22earlier terminated except by court order. Any proceeding to revoke
23or modify mandatory supervision under this subparagraph shall
24be conducted pursuant to either subdivisions (a) and (b) of Section
251203.2 or Section 1203.3. During
the period when the defendant
26is under such supervision, unless in actual custody related to the
27sentence imposed by the court, the defendant shall be entitled to
28only actual time credit against the term of imprisonment imposed
29by the court. Any time periodbegin delete whichend deletebegin insert thatend insert is suspended because a
30person has absconded shall not be credited toward the period of
31supervision.
32(ii) The portion of a defendant’s sentenced term during which
33time he or she is supervised by the county probation officer
34pursuant to this subparagraph shall be known as mandatory
35supervision.
36(6) The sentencing changes made by the act that added this
37subdivision shall be applied prospectively to any person sentenced
38on or after
October 1, 2011.
P11 1(i) This section shall remain in effect only until January 1, 2017,
2and as of that date is repealed, unless a later enacted statute, that
3is enacted before that date, deletes or extends that date.
Section 1170 of the Penal Code, as amended by Section
56 of Chapter 508 of the Statutes of 2013, is amended to read:
(a) (1) The Legislature finds and declares that the
7purpose of imprisonment for crime is punishment. This purpose
8is best served by terms proportionate to the seriousness of the
9offense with provision for uniformity in the sentences of offenders
10committing the same offense under similar circumstances. The
11Legislature further finds and declares that the elimination of
12disparity and the provision of uniformity of sentences can best be
13achieved by determinate sentences fixed by statute in proportion
14to the seriousness of the offense as determined by the Legislature
15to be imposed by the court with specified discretion.
16(2) Notwithstanding paragraph (1), the Legislature further finds
17and declares that programs should be available for inmates,
18
including, but not limited to, educational programs, that are
19designed to prepare nonviolent felony offenders for successful
20reentry into the community. The Legislature encourages the
21development of policies and programs designed to educate and
22rehabilitate nonviolent felony offenders. In implementing this
23section, the Department of Corrections and Rehabilitation is
24encouraged to give priority enrollment in programs to promote
25successful return to the community to an inmate with a short
26remaining term of commitment and a release date that would allow
27him or her adequate time to complete the program.
28(3) In any case in which the punishment prescribed by statute
29for a person convicted of a public offense is a term of imprisonment
30in the state prison of any specification of three time periods, the
31court shall sentence the defendant to one of the terms of
32imprisonment specified unless the convicted person is given any
33other disposition provided by
law, including a fine, jail, probation,
34or the suspension of imposition or execution of sentence or is
35sentenced pursuant to subdivision (b) of Section 1168 because he
36or she had committed his or her crime prior to July 1, 1977. In
37sentencing the convicted person, the court shall apply the
38sentencing rules of the Judicial Council. The court, unless it
39determines that there are circumstances in mitigation of the
40punishment prescribed, shall also impose any other term that it is
P12 1required by law to impose as an additional term. Nothing in this
2article shall affect any provision of law that imposes the death
3penalty, that authorizes or restricts the granting of probation or
4suspending the execution or imposition of sentence, or expressly
5provides for imprisonment in the state prison for life, except as
6provided in paragraph (2) of subdivision (d). In any case in which
7the amount of preimprisonment credit under Section 2900.5 or any
8other provision of law is equal to or exceeds any sentence imposed
9pursuant to
this chapter, the entire sentence shall be deemed to
10have been served and the defendant shall not be actually delivered
11to the custody of the secretary. The court shall advise the defendant
12that he or she shall serve a period of parole and order the defendant
13to report to the parole office closest to the defendant’s last legal
14residence, unless the in-custody credits equal the total sentence,
15including both confinement time and the period of parole. The
16sentence shall be deemed a separate prior prison term under Section
17667.5, and a copy of the judgment and other necessary
18documentation shall be forwarded to the secretary.
19(b) When a judgment of imprisonment is to be imposed and the
20statute specifies three possible terms, the court shall order
21imposition of the middle term, unless there are circumstances in
22aggravation or mitigation of the crime. At least four days prior to
23the time set for imposition of judgment, either party or the victim,
24or
the family of the victim if the victim is deceased, may submit
25a statement in aggravation or mitigation to dispute facts in the
26record or the probation officer’s report, or to present additional
27facts. In determining whether there are circumstances that justify
28imposition of the upper or lower term, the court may consider the
29record in the case, the probation officer’s report, other reports,
30including reports received pursuant to Section 1203.03, and
31statements in aggravation or mitigation submitted by the
32prosecution, the defendant, or the victim, or the family of the victim
33if the victim is deceased, and any further evidence introduced at
34the sentencing hearing. The court shall set forth on the record the
35facts and reasons for imposing the upper or lower term. The court
36may not impose an upper term by using the fact of any
37enhancement upon which sentence is imposed under any provision
38of law. A term of imprisonment shall not be specified if imposition
39of sentence is suspended.
P13 1(c) The court shall state the reasons for its sentence choice on
2the record at the time of sentencing. The court shall also inform
3the defendant that as part of the sentence after expiration of the
4term he or she may be on parole for a period as provided in Section
53000.
6(d) (1) When a defendant subject to this section or subdivision
7(b) of Section 1168 has been sentenced to be imprisoned in the
8state prison and has been committed to the custody of the secretary,
9the court may, within 120 days of the date of commitment on its
10own motion, or at any time upon the recommendation of the
11secretary or the Board of Parole Hearings, recall the sentence and
12commitment previously ordered and resentence the defendant in
13the same manner as if he or she had not previously been sentenced,
14provided the new sentence, if any, is no greater than the initial
15sentence. The court
resentencing under this subdivision shall apply
16the sentencing rules of the Judicial Council so as to eliminate
17disparity of sentences and to promote uniformity of sentencing.
18Credit shall be given for time served.
19(2) (A) (i) When a defendant who was under 18 years of age
20at the time of the commission of the offense for which the
21defendant was sentenced to imprisonment for life without the
22possibility of parole has served at least 15 years of that sentence,
23the defendant may submit to the sentencing court a petition for
24recall and resentencing.
25(ii) Notwithstanding clause (i), this paragraph shall not apply
26to defendants sentenced to life without parole for an offense where
27the defendant tortured, as described in Section 206, his or her
28victim or the victim was a public safety official, including any law
29enforcement personnel mentioned
in Chapter 4.5 (commencing
30with Section 830) of Title 3, or any firefighter as described in
31Section 245.1, as well as any other officer in any segment of law
32enforcement who is employed by the federal government, the state,
33or any of its political subdivisions.
34(B) The defendant shall file the original petition with the
35sentencing court. A copy of the petition shall be served on the
36agency that prosecuted the case. The petition shall include the
37defendant’s statement that he or she was under 18 years of age at
38the time of the crime and was sentenced to life in prison without
39the possibility of parole, the defendant’s statement describing his
P14 1or her remorse and work towards rehabilitation, and the defendant’s
2statement that one of the following is true:
3(i) The defendant was convicted pursuant to felony murder or
4aiding and abetting murder provisions of law.
5(ii) The defendant does not have juvenile felony adjudications
6for assault or other felony crimes with a significant potential for
7personal harm to victims prior to the offense for which the sentence
8is being considered for recall.
9(iii) The defendant committed the offense with at least one adult
10codefendant.
11(iv) The defendant has performed acts that tend to indicate
12rehabilitation or the potential for rehabilitation, including, but not
13limited to, availing himself or herself of rehabilitative, educational,
14or vocational programs, if those programs have been available at
15his or her classification level and facility, using self-study for
16self-improvement, or showing evidence of remorse.
17(C) If any of the information required in subparagraph (B) is
18missing
from the petition, or if proof of service on the prosecuting
19agency is not provided, the court shall return the petition to the
20defendant and advise the defendant that the matter cannot be
21considered without the missing information.
22(D) A reply to the petition, if any, shall be filed with the court
23within 60 days of the date on which the prosecuting agency was
24served with the petition, unless a continuance is granted for good
25cause.
26(E) If the court finds by a preponderance of the evidence that
27the statements in the petition are true, the court shall hold a hearing
28to consider whether to recall the sentence and commitment
29previously ordered and to resentence the defendant in the same
30manner as if the defendant had not previously been sentenced,
31provided that the new sentence, if any, is not greater than the initial
32sentence. Victims, or victim family members if the victim is
33
deceased, shall retain the rights to participate in the hearing.
34(F) The factors that the court may consider when determining
35whether to recall and resentence include, but are not limited to,
36the following:
37(i) The defendant was convicted pursuant to felony murder or
38aiding and abetting murder provisions of law.
39(ii) The defendant does not have juvenile felony adjudications
40for assault or other felony crimes with a significant potential for
P15 1personal harm to victims prior to the offense for which the sentence
2is being considered for recall.
3(iii) The defendant committed the offense with at least one adult
4codefendant.
5(iv) Prior to the offense for which the sentence is being
6considered for
recall, the defendant had insufficient adult support
7or supervision and had suffered from psychological or physical
8trauma, or significant stress.
9(v) The defendant suffers from cognitive limitations due to
10mental illness, developmental disabilities, or other factors that did
11not constitute a defense, but influenced the defendant’s
12involvement in the offense.
13(vi) The defendant has performed acts that tend to indicate
14rehabilitation or the potential for rehabilitation, including, but not
15limited to, availing himself or herself of rehabilitative, educational,
16or vocational programs, if those programs have been available at
17his or her classification level and facility, using self-study for
18self-improvement, or showing evidence of remorse.
19(vii) The defendant has maintained family ties or connections
20with others through
letter writing, calls, or visits, or has eliminated
21contact with individuals outside of prison who are currently
22involved with crime.
23(viii) The defendant has had no disciplinary actions for violent
24activities in the last five years in which the defendant was
25determined to be the aggressor.
26(G) The court shall have the discretion to recall the sentence
27and commitment previously ordered and to resentence the
28defendant in the same manner as if the defendant had not
29previously been sentenced, provided that the new sentence, if any,
30is not greater than the initial sentence. The discretion of the court
31shall be exercised in consideration of the criteria in subparagraph
32(B). Victims, or victim family members if the victim is deceased,
33shall be notified of the resentencing hearing and shall retain their
34rights to participate in the hearing.
35(H) If the sentence is not recalled, the defendant may submit
36another petition for recall and resentencing to the sentencing court
37when the defendant has been committed to the custody of the
38department for at least 20 years. If recall and resentencing is not
39granted under that petition, the defendant may file another petition
40after having served 24 years. The final petition may be submitted,
P16 1and the response to that petition shall be determined, during the
225th year of the defendant’s sentence.
3(I) In addition to the criteria in subparagraph (F), the court may
4consider any other criteria that the court deems relevant to its
5decision, so long as the court identifies them on the record,
6provides a statement of reasons for adopting them, and states why
7the defendant does or does not satisfy the criteria.
8(J) This subdivision shall have retroactive application.
9(e) (1) Notwithstanding any other law and consistent with
10paragraph (1) of subdivision (a), if the secretary or the Board of
11Parole Hearings or both determine that a prisoner satisfies the
12criteria set forth in paragraph (2), the secretary or the board may
13recommend to the court that the prisoner’s sentence be recalled.
14(2) The court shall have the discretion to resentence or recall if
15the court finds that the facts described in subparagraphs (A) and
16(B) or subparagraphs (B) and (C) exist:
17(A) The prisoner is terminally ill with an incurable condition
18caused by an illness or disease that would produce death within
19six months, as determined by a physician employed by the
20department.
21(B) The
conditions under which the prisoner would be released
22or receive treatment do not pose a threat to public safety.
23(C) The prisoner is permanently medically incapacitated with
24a medical condition that renders him or her permanently unable
25to perform activities of basic daily living, and results in the prisoner
26requiring 24-hour total care, including, but not limited to, coma,
27persistent vegetative state, brain death, ventilator-dependency, loss
28of control of muscular or neurological function, and that
29incapacitation did not exist at the time of the original sentencing.
30The Board of Parole Hearings shall make findings pursuant to
31this subdivision before making a recommendation for resentence
32or recall to the court. This subdivision does not apply to a prisoner
33sentenced to death or a term of life without the possibility of parole.
34(3) Within 10 days of receipt of a positive recommendation by
35the secretary or the board, the court shall hold a hearing to consider
36whether the prisoner’s sentence should be recalled.
37(4) Any physician employed by the department who determines
38that a prisoner has six months or less to live shall notify the chief
39medical officer of the prognosis. If the chief medical officer
40concurs with the prognosis, he or she shall notify the warden.
P17 1Within 48 hours of receiving notification, the warden or the
2warden’s representative shall notify the prisoner of the recall and
3resentencing procedures, and shall arrange for the prisoner to
4designate a family member or other outside agent to be notified
5as to the prisoner’s medical condition and prognosis, and as to the
6recall and resentencing procedures. If the inmate is deemed
7mentally unfit, the warden or the warden’s representative shall
8contact the inmate’s emergency contact and provide the
information
9described in paragraph (2).
10(5) The warden or the warden’s representative shall provide the
11prisoner and his or her family member, agent, or emergency
12contact, as described in paragraph (4), updated information
13throughout the recall and resentencing process with regard to the
14prisoner’s medical condition and the status of the prisoner’s recall
15and resentencing proceedings.
16(6) Notwithstanding any other provisions of this section, the
17prisoner or his or her family member or designee may
18independently request consideration for recall and resentencing
19by contacting the chief medical officer at the prison or the
20secretary. Upon receipt of the request, the chief medical officer
21and the warden or the warden’s representative shall follow the
22procedures described in paragraph (4). If the secretary determines
23that the prisoner satisfies the criteria set forth in paragraph (2),
the
24secretary or board may recommend to the court that the prisoner’s
25sentence be recalled. The secretary shall submit a recommendation
26for release within 30 days in the case of inmates sentenced to
27determinate terms and, in the case of inmates sentenced to
28indeterminate terms, the secretary shall make a recommendation
29to the Board of Parole Hearings with respect to the inmates who
30have applied under this section. The board shall consider this
31information and make an independent judgment pursuant to
32paragraph (2) and make findings related thereto before rejecting
33the request or making a recommendation to the court. This action
34shall be taken at the next lawfully noticed board meeting.
35(7) Any recommendation for recall submitted to the court by
36the secretary or the Board of Parole Hearings shall include one or
37more medical evaluations, a postrelease plan, and findings pursuant
38to paragraph (2).
39(8) If possible, the matter shall be heard before the same judge
40of the court who sentenced the prisoner.
P18 1(9) If the court grants the recall and resentencing application,
2the prisoner shall be released by the department within 48 hours
3of receipt of the court’s order, unless a longer time period is agreed
4to by the inmate. At the time of release, the warden or the warden’s
5representative shall ensure that the prisoner has each of the
6following in his or her possession: a discharge medical summary,
7full medical records, state identification, parole medications, and
8all property belonging to the prisoner. After discharge, any
9additional records shall be sent to the prisoner’s forwarding
10address.
11(10) The secretary shall issue a directive to medical and
12correctional staff employed by the department that details the
13guidelines and procedures for initiating a recall and
resentencing
14procedure. The directive shall clearly state that any prisoner who
15is given a prognosis of six months or less to live is eligible for
16recall and resentencing consideration, and that recall and
17resentencing procedures shall be initiated upon that prognosis.
18(f) Notwithstanding any other provision of this section, for
19purposes of paragraph (3) of subdivision (h), any allegation that
20a defendant is eligible for state prison due to a prior or current
21conviction, sentence enhancement, or because he or she is required
22to register as a sex offender shall not be subject to dismissal
23pursuant to Section 1385.
24(g) A sentence to state prison for a determinate term for which
25only one term is specified, is a sentence to state prison under this
26section.
27(h) (1) Except as provided in paragraph
(3), a felony punishable
28pursuant to this subdivision where the term is not specified in the
29underlying offense shall be punishable by a term of imprisonment
30in a county jail for 16 months, or two or three years.
31(2) Except as provided in paragraph (3), a felony punishable
32pursuant to this subdivision shall be punishable by imprisonment
33in a county jail for the term described in the underlying offense.
34(3) Notwithstanding paragraphs (1) and (2), where the defendant
35(A) has a prior or current felony conviction for a serious felony
36described in subdivision (c) of Section 1192.7 or a prior or current
37conviction for a violent felony described in subdivision (c) of
38Section 667.5, (B) has a prior felony conviction in another
39jurisdiction for an offense that has all the elements of a serious
40felony described in subdivision (c) of Section 1192.7 or a violent
P19 1felony described in
subdivision (c) of Section 667.5, (C) is required
2to register as a sex offender pursuant to Chapter 5.5 (commencing
3with Section 290) of Title 9 of Part 1,begin delete orend delete (D) is convicted of a crime
4and as part of the sentence an enhancement pursuant to Section
5186.11 is imposed,begin insert or (E) is convicted of a crime or crimes for
6which he or she is sentenced to an aggregate term of imprisonment
7of 10 years or more,end insert an executed sentence for a felony punishable
8pursuant to this subdivision shall be served in state prison.
9(4) Nothing in this subdivision shall be construed to prevent
10other dispositions authorized by law, including pretrial diversion,
11deferred entry of judgment, or an order granting probation pursuant
12to Section 1203.1.
13(5) The court, when imposing a sentence pursuant to paragraph
14(1) or (2) of this subdivision, may commit the defendant to county
15jail as follows:
16(A) For a full term in custody as determined in accordance with
17the applicable sentencing law.
18(B) (i) For a term as determined in accordance with the
19applicable sentencing law, but suspend execution of a concluding
20portion of the term selected in the court’s discretion, during which
21time the defendant shall be supervised by the county probation
22officer in accordance with the terms, conditions, and procedures
23generally applicable to persons placed on probation, for the
24remaining unserved portion of the sentence imposed by the court.
25The period of supervision shall be mandatory, and may not be
26earlier terminated except by court order. Any proceeding to
revoke
27or modify mandatory supervision under this subparagraph shall
28be conducted pursuant to either subdivisions (a) and (b) of Section
291203.2 or Section 1203.3. During the period when the defendant
30is under such supervision, unless in actual custody related to the
31sentence imposed by the court, the defendant shall be entitled to
32only actual time credit against the term of imprisonment imposed
33by the court. Any time periodbegin delete whichend deletebegin insert thatend insert is suspended because a
34person has absconded shall not be credited toward the period of
35supervision.
36(ii) The portion of a defendant’s sentenced term during which
37time he or she is supervised by the county probation officer
38pursuant to this subparagraph shall be known as mandatory
39 supervision, and shall begin upon release from
custody.
P20 1(6) The sentencing changes made by the act that added this
2subdivision shall be applied prospectively to any person sentenced
3on or after October 1, 2011.
4(i) This section shall become operative on January 1, 2017.
This act is an urgency statute necessary for the
6immediate preservation of the public peace, health, or safety within
7the meaning of Article IV of the Constitution and shall go into
8immediate effect. The facts constituting the necessity are:
9In order to protect the safety of the public at the earliest possible
10time, it is necessary for this act to take effect immediately.
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