Senate Bill No. 1284

Introduced by Senator Galgiani

February 21, 2014

An act to amend Sections 1170 and 3550 of the Penal Code, relating to parole.

LEGISLATIVE COUNSEL’S DIGEST

SB 1284, as introduced, Galgiani. Parole: medical parole: compassionate release.

Existing law provides that the Board of Parole Hearings or its successor in interest shall be the state’s parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.

Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions

This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the murder of a peace officer, as provided.

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

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

SECTION 1.  

Section 1170 of the Penal Code, as amended by
Section 5 of Chapter 508 of the Statutes of 2013, 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) Notwithstanding paragraph (1), 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 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, the entire sentence shall be deemed to
have been served and the defendant shall not be actually delivered
to the custody of the secretary. The court shall advise the defendant
that he or she shall serve a period of parole and order the defendant
to report to the parole 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. The
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 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.

(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 and has been committed to the custody of the secretary,
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, 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)  begin insert (A) end insert begin insert   end insert The court shall have the discretion to resentence or
recall if the court finds that the facts described in begin delete subparagraphs
(A) and (B) or subparagraphs (B) and (C) end delete begin insert clauses (i) and (ii) or
clauses (ii) and (iii) end insert exist:

begin delete

(A)

end delete

begin insert ( end insert begin insert i) end insert  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.

begin delete

(B)

end delete

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

begin delete

(C)

end delete

begin insert (iii) end insert  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.

begin delete

The Board of Parole Hearings shall make findings pursuant to
this subdivision before making a recommendation for resentence
or recall to the court. This

end delete

begin insert (B) end insert begin insert   end insert begin insert This end insert subdivision does not apply to begin delete a end delete begin insert the following: end insert

begin insert (i) end insert begin insert   end insert begin insert A end insert prisoner sentenced to death or a term of life without the
possibility of parole.

begin insert

(ii) (I) A prisoner who was convicted of murder if the victim
was a peace officer, as defined in Section 830.1, 830.2, 830.3,
830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4,
830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while
engaged in the performance of his or her duties, and the individual
knew, or reasonably should have known, that the victim was a
peace officer engaged in the performance of his or her duties.

end insert begin insert

(II) The victim was a peace officer, as defined in any of the
sections enumerated in subclause (I), or had been a peace officer,
as defined in any of those sections, and was intentionally murdered
in retaliation for the performance of his or her official duties.

end insert begin insert

(III) If the court determines that the application of this clause
violates the ex post facto clauses of the United States Constitution
or the California Constitution, the court shall only enforce its
provisions prospectively.

end insert begin insert

(C) The Board of Parole Hearings shall make findings pursuant
to this subdivision before making a recommendation for resentence
or recall to the court.

end insert

(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 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.

(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) The court, when imposing a sentence pursuant to paragraph
(1) or (2) of this subdivision, may commit the defendant to county
jail as follows:

(A) For a full term in custody as determined in accordance with
the applicable sentencing law.

(B) (i) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a concluding
portion of the term selected in the court’s discretion, during which
time 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 such 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.

(ii) The portion of a defendant’s sentenced term during which
time he or she is supervised by the county probation officer
pursuant to this subparagraph shall be known as mandatory
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.

(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
6 of Chapter 508 of the Statutes of 2013, 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) Notwithstanding paragraph (1), 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 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, the entire sentence shall be deemed to
have been served and the defendant shall not be actually delivered
to the custody of the secretary. The court shall advise the defendant
that he or she shall serve a period of parole and order the defendant
to report to the parole 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. The
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 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.

(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 and has been committed to the custody of the secretary,
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, 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)  begin insert (A) end insert begin insert   end insert The court shall have the discretion to resentence or
recall if the court finds that the facts described in begin delete subparagraphs
(A) and (B) or subparagraphs (B) and (C) end delete begin insert clauses (i) and (ii) or
clauses (ii) and (iii) end insert exist:

begin delete

(A)

end delete

begin insert ( end insert begin insert i) end insert  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.

begin delete

(B)

end delete

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

begin delete

(C)

end delete

begin insert (iii) end insert  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.

begin delete

The Board of Parole Hearings shall make findings pursuant to
this subdivision before making a recommendation for resentence
or recall to the court. This

end delete

begin insert ( end insert begin insert B) end insert begin insert   end insert begin insert This end insert subdivision does not apply to begin delete a end delete begin insert the following: end insert

begin insert ( end insert begin insert i) end insert begin insert   end insert begin insert A end insert prisoner sentenced to death or a term of life without the
possibility of parole.

begin insert

(ii) (I) A prisoner who was convicted of murder if the victim
was a peace officer, as defined in Section 830.1, 830.2, 830.3,
830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4,
830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while
engaged in the performance of his or her duties, and the individual
knew, or reasonably should have known, that the victim was a
peace officer engaged in the performance of his or her duties.

end insert begin insert

(II) The victim was a peace officer, as defined in any of the
sections enumerated in subclause (I), or had been a peace officer,
as defined in any of those sections, and was intentionally murdered
in retaliation for the performance of his or her official duties.

end insert begin insert

(III) If the court determines that the application of this clause
violates the ex post facto clauses of the United States Constitution
or the California Constitution, the court shall only enforce its
provisions prospectively.

end insert begin insert

(C) The Board of Parole Hearings shall make findings pursuant
to this subdivision before making a recommendation for resentence
or recall to the court.

end insert

(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 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.

(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) The court, when imposing a sentence pursuant to paragraph
(1) or (2) of this subdivision, may commit the defendant to county
jail as follows:

(A) For a full term in custody as determined in accordance with
the applicable sentencing law.

(B) (i) For a term as determined in accordance with the
applicable sentencing law, but suspend execution of a concluding
portion of the term selected in the court’s discretion, during which
time 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 such 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.

(ii) The portion of a defendant’s sentenced term during which
time he or she is supervised by the county probation officer
pursuant to this subparagraph shall be known as mandatory
supervision, and shall begin upon release from custody.

(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.

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

SEC. 3.  

Section 3550 of the Penal Code is amended to read:

3550.  

(a) Notwithstanding any other provision of law, except
as provided in subdivision (b), begin delete any prisoner who end delete begin insert if end insert the head
physician of begin delete the end delete begin insert an end insert institution begin delete where the end delete begin insert in which a end insert prisoner is
begin delete located end delete begin insert incarcerated end insert determines, as provided in this section, begin insert that
the prisoner end insert 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 care, and that incapacitation did not exist at the time of
sentencing, begin insert the prisoner end insert shall be granted medical parole if the
Board of Parole Hearings determines that the conditions under
which begin delete the prisoner end delete begin insert he or she end insert would be released would not
reasonably pose a threat to public safety.

(b)  begin insert This section does not alter or diminish the rights conferred
under the Victim’s Bill of Rights Act of 2008 (Marsy’s Law). end insert
Subdivision (a) begin delete shall end delete begin insert does end insert not apply to any begin delete prisoner end delete begin insert of the
following: end insert

begin insert (1) end insert begin insert   end insert begin insert A prisoner end insert sentenced to death or life in prison without
possibility of begin delete parole or to any inmate who end delete begin insert parole. end insert

begin insert (2) end insert begin insert   end insert begin insert A prisoner who end insert is serving a sentence for which parole,
pursuant to subdivision (a), is prohibited by any initiative statute.
begin delete The provisions of this section shall not be construed to alter or
diminish the rights conferred under the Victim’s Bill of Rights Act
of 2008: Marsy’s Law. end delete

begin insert

(3) (A) A prisoner who was convicted of murder if the victim
was a peace officer, as defined in Section 830.1, 830.2, 830.3,
830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4,
830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while
engaged in the performance of his or her duties, and the individual
knew, or reasonably should have known, that the victim was a
peace officer engaged in the performance of his or her duties.

end insert begin insert

(B) The victim was a peace officer, as defined in any of the
sections enumerated in subparagraph (A), or had been a peace
officer, as defined in any of those sections, and was intentionally
murdered in retaliation for the performance of his or her official
duties.

end insert begin insert

(C) If the court determines that the application of this paragraph
violates the ex post facto clauses of the United States Constitution
or the California Constitution, the court shall only enforce its
provisions prospectively.

end insert

(c) When a physician employed by the Department of
Corrections and Rehabilitation who is the primary care provider
for begin delete an inmate end delete begin insert a prisoner end insert identifies begin delete an inmate end delete begin insert a prisoner end insert that he or
she believes meets the medical criteria for medical parole specified
in subdivision (a), the primary care physician shall recommend to
the head physician of the institution where the prisoner is located
that the prisoner be referred to the Board of Parole Hearings for
consideration for medical parole. Within 30 days of receiving that
recommendation, if the head physician of the institution concurs
in the recommendation of the primary care physician, he or she
shall refer the matter to the Board of Parole Hearings using a
standardized form and format developed by the department, and
if the head physician of the institution does not concur in the
recommendation, he or she shall provide the primary care physician
with a written explanation of the reasons for denying the referral.

(d) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may
independently request consideration for medical parole by
contacting the head physician at the prison or the department.
Within 30 days of receiving the request, the head physician of the
institution shall, in consultation with the prisoner’s primary care
physician, make a determination regarding whether the prisoner
meets the criteria for medical parole as specified in subdivision
(a) and, if the head physician of the institution determines that the
prisoner satisfies the criteria set forth in subdivision (a), he or she
shall refer the matter to the Board of Parole Hearings using a
standardized form and format developed by the department. If the
head physician of the institution does not concur in the
recommendation, he or she shall provide the prisoner or his or her
family member or designee with a written explanation of the
reasons for denying the application.

(e) The Department of Corrections and Rehabilitation shall
complete parole plans for inmates referred to the Board of Parole
Hearings for medical parole consideration. The parole plans shall
include, but not be limited to, the inmate’s plan for residency and
medical care.

(f) Notwithstanding any other law, medical parole hearings shall
be conducted by two-person panels consisting of at least one
commissioner. In the event of a tie vote, the matter shall be referred
to the full board for a decision. Medical parole hearings may be
heard in absentia.

(g) Upon receiving a recommendation from the head physician
of the institution where a prisoner is located for the prisoner to be
granted medical parole pursuant to subdivision (c) or (d), the board,
as specified in subdivision (f), shall make an independent judgment
regarding whether the conditions under which the inmate would
be released pose a reasonable threat to public safety, and make
written findings related thereto.

(h) Notwithstanding any other provision of law, the board or
the Division of Adult Parole Operations shall have the authority
to impose any reasonable conditions on prisoners subject to medical
parole supervision pursuant to subdivision (a), including, but not
limited to, the requirement that the parolee submit to electronic
monitoring. As a further condition of medical parole, pursuant to
subdivision (a), the parolee may be required to submit to an
examination by a physician selected by the board for the purpose
of diagnosing the parolee’s current medical condition. In the event
such an examination takes place, a report of the examination and
diagnosis shall be submitted to the board by the examining
physician. If the board determines, based on that medical
examination, that the person’s medical condition has improved to
the extent that the person no longer qualifies for medical parole,
the board shall return the person to the custody of the department.

(1) Notwithstanding any other provision of law establishing
maximum periods for parole, a prisoner sentenced to a determinate
term who is placed on medical parole supervision prior to the
earliest possible release date and who remains eligible for medical
parole, shall remain on medical parole, pursuant to subdivision
(a), until that earliest possible release date, at which time the
parolee shall commence serving that period of parole provided by,
and under the provisions of, Chapter 8 (commencing with Section
3000) of Title 1.

(2) Notwithstanding any other provisions of law establishing
maximum periods for parole, a prisoner sentenced to an
indeterminate term who is placed on medical parole supervision
prior to the prisoner’s minimum eligible parole date, and who
remains eligible for medical parole, shall remain on medical parole
pursuant to subdivision (a) until that minimum eligible parole date,
at which time the parolee shall be eligible for parole consideration
under all other provisions of Chapter 8 (commencing with Section
3000) of Title 1.

(i) The Department of Corrections and Rehabilitation shall, at
the time a prisoner is placed on medical parole supervision pursuant
to subdivision (a), ensure that the prisoner has applied for any
federal entitlement programs for which the prisoner is eligible,
and has in his or her possession a discharge medical summary, full
medical records, parole medications, and all property belonging
to the prisoner that was under the control of the department. Any
additional records shall be sent to the prisoner’s forwarding address
after release to health care-related parole supervision.

(j) The provisions for medical parole set forth in this title shall
not affect an inmate’s eligibility for any other form of parole or
release provided by law.

(k) (1) Notwithstanding any other provision of law, the
Department of Corrections and Rehabilitation shall give notice to
the county of commitment and the proposed county of release, if
that county is different than the county of commitment, of any
medical parole hearing as described in subdivision (f), and of any
medical parole release as described in subdivision (g).

(2) Notice shall be made at least 30 days, or as soon as feasible,
prior to the time any medical parole hearing or medical parole
release is scheduled for an inmate receiving medical parole
consideration, regardless of whether the inmate is sentenced either
determinately or indeterminately.