Amended in Senate March 25, 2014

Senate Bill No. 1363

Introduced by Senator Hancock

February 21, 2014

An act begin insert to amend Section 3041 of the Penal Code, end insert relating to sentencing.

LEGISLATIVE COUNSEL’S DIGEST

SB 1363, as amended, Hancock. begin delete Sentencing. end delete begin insert Sentencing: parole. end insert

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Existing law requires the Board of Parole Hearings to meet with each inmate during the 6th year prior to the inmate’s minimum eligible parole release date for the purposes of reviewing and documenting the inmate’s activities and conduct pertinent to both parole eligibility and to the granting or withholding of postconviction credit. During this consultation, the board is required to provide the inmate with information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior. Existing law requires the board to issue its positive and negative findings and recommendations to the inmate in writing, within 30 days following the consultation.

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This bill would require the board to establish criteria for the setting of the base term of incarceration. The criteria shall include, but not be limited to, consideration of the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime. The bill would require the board to establish criteria for determining whether an inmate is suitable for parole, and would require the board to establish criteria for an inmate’s adjusted base term of incarceration, as adjusted by applicable enhancements or credits. The bill would require an inmate who is found suitable for parole to be paroled regardless of whether the base term of incarceration, as adjusted, has expired, subject to certain minimum term provisions and specified review provisions.

end insert begin insert

Existing law requires that one year prior to the inmate’s minimum eligible parole release date a panel of 2 or more commissioners or deputy commissioners acting for the board meet with the inmate and, subject to exception, set a parole release date per specified procedures.

end insert begin insert

The bill would require the panel meeting with the inmate to establish the inmate’s base term of incarceration by applying the applicable factors set out in the board’s regulations and guidelines. The bill would require the board to adopt prior determinations and findings of the sentencing court in establishing the base term of incarceration. The bill would require that the base term of incarceration be set in a manner that will, to the greatest extent possible, provide proportionate and uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, that will comply with the sentencing rules that the Judicial Council may issue, and with any sentencing information relevant to the setting of the base term of incarceration. The bill would require the board to also establish the inmate’s adjusted base term of incarceration by applying any adjustments to the base term of incarceration based on the inmate’s incarceration history. The bill provides that at the meeting one year prior to the inmate’s minimum eligible parole release date the board will normally set a release date at the inmate’s initial parole hearing, but is not required to set a parole date in every case.

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Existing law requires the board to separately state reasons for its decision to grant or deny parole.

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The bill would require the board’s stated reasons to demonstrate, on the record, an individualized consideration of all relevant factors. The bill would require that in the case of an inmate who has served beyond his or her base term of incarceration, as adjusted, a decision by the board to deny parole be supported by substantial evidence and with respect to the entire record.

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The bill would require the board to collect and maintain statistics that show, annually, the number of inmates in state prison who are serving a term in excess of their base term of incarceration, as adjusted by applicable enhancements or credits, and the percentage of all cases decided each year in which the board, in a final decision, by a panel or the board sitting en banc, has declined to find an inmate suitable for parole, despite the fact that the inmate has served a sentence beyond the base term of incarceration, as adjusted by applicable enhancements or credits. The bill would require the board to report the data to the Legislature on or before January 1, 2016, and annually thereafter.

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Existing law generally provides that felons are incarcerated in county jails, and are subject to county supervision upon release, excepting however, felons convicted of violent or serious felonies, or of felonies requiring registration as a sex offender, who are incarcerated in state prison and are generally subject to supervision by the Department of Corrections and Rehabilitation upon release.

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This bill would express the intent of the Legislature to enact legislation relating to sentencing and parole.

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

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

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begin insert SECTION 1. end insert   

end insert

begin insert Section 3041 of the end insert begin insert Penal Code end insert begin insert is amended to
read: end insert

3041.  

(a)  begin insert The Board of Parole Hearings shall establish criteria
for the setting of the base term of incarceration. The criteria shall
include, but not be limited to, consideration of the number of
victims of the crime for which the inmate was sentenced and other
factors in mitigation or aggravation of the crime. end insert

begin insert

(b) The board shall establish criteria for determining whether
an inmate is suitable for parole. The board shall establish criteria
for an inmate’s base term of incarceration, as adjusted by
applicable enhancements or credits, that shall be relevant but not
dispositive of whether an inmate is suitable for parole.

end insert begin insert

(c) The board has the discretion to determine the suitability for
parole of any inmate who is eligible for parole, giving paramount
consideration to public safety. An inmate who is found suitable
for parole shall be paroled regardless of whether the base term
of incarceration, as adjusted, has expired, subject to the minimum
term provisions in Section 3046, as applicable, and to the review
provisions in subdivision (c), and Sections 3041.1 and 3041.2, and
subdivision (b) of Section 8 of Article V of the California
Constitution. This section does not affect the Governor’s
independent authority to review, under Sections 3041.1 and 3041.2
and under subdivision (b) of Section 8 of Article V of the California
Constitution, a parole decision by the board.

end insert

begin insert (d) end insert begin insert   end insert In the case of any inmate sentenced pursuant to any law,
other than Chapter 4.5 (commencing with Section 1170) of Title
7 of Part 2, the Board of Parole Hearings shall meet with each
inmate during the sixth year prior to the inmate’s minimum eligible
parole release date for the purposes of reviewing and documenting
the inmate’s activities and conduct pertinent to both parole
eligibility and to the granting or withholding of postconviction
credit. During this consultation, the board shall provide the inmate
information about the parole hearing process, legal factors relevant
to his or her suitability or unsuitability for parole, and
individualized recommendations for the inmate regarding his or
her work assignments, rehabilitative programs, and institutional
behavior. Within 30 days following the consultation, the board
shall issue its positive and negative findings and recommendations
to the inmate in writing. begin delete One end delete

begin insert (e) end insert begin insert   end insert begin insert One end insert year prior to the inmate’s minimum eligible parole
release date a panel of two or more commissioners or deputy
commissioners shall again meet with the inmate and shall begin delete normally
set a parole release date as provided in Section 3041.5. end delete begin insert in every
case establish the inmate’s base term of incarceration by applying
the applicable factors set out in the board’s regulations and
guidelines. The board shall adopt prior determinations and findings
of the sentencing court in establishing the base term of
incarceration. The base term of incarceration shall be set in a
manner that will, to the greatest extent possible, provide
proportionate and uniform terms for offenses of similar gravity
and magnitude with respect to their threat to the public, and that
will comply with the sentencing rules that the Judicial Council
may issue, and with any sentencing information relevant to the
setting of the base term of incarceration. The board shall also
establish the inmate’s adjusted base term of incarceration by
applying any adjustments to the base term of incarceration based
on the inmate end insert begin insert ’s incarceration history. The board shall normally
set a release date at the inmate’s initial parole hearing, as provided
in Section 3014.5, but is not required to set a parole date in every
case. end insert begin delete No end delete

begin insert (f) end insert begin insert   end insert begin insert No end insert more than one member of the panel shall be a deputy
commissioner. In the event of a tie vote, the matter shall be referred
for an en banc review of the record that was before the panel that
rendered the tie vote. Upon en banc review, the board shall vote
to either grant or deny parole and render a statement of decision.
The en banc review shall be conducted pursuant to subdivision begin delete (e). The release date shall be set in a manner that will provide
uniform terms for offenses of similar gravity and magnitude with
respect to their threat to the public, and that will comply with the
sentencing rules that the Judicial Council may issue and any
sentencing information relevant to the setting of parole release
dates. The board shall establish criteria for the setting of parole
release dates and in doing so shall consider the number of victims
of the crime for which the inmate was sentenced and other factors
in mitigation or aggravation of the crime. At end delete begin insert (l). end insert

begin insert (g) end insert begin insert   end insert begin insert At end insert least one commissioner of the panel shall have been
present at the last preceding meeting, unless it is not feasible to
do so or where the last preceding meeting was the initial meeting.
Any person on the hearing panel may request review of any
decision regarding parole for an en banc hearing by the board. In
case of a review, a majority vote in favor of parole by the board
members participating in an en banc review is required to grant
parole to any inmate.

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(b)

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begin insert (h) end insert  The panel or the board, sitting en banc, shall set a release
date unless it determines that the gravity of the current convicted
offense or offenses, or the timing and gravity of current or past
convicted offense or offenses, is such that consideration of the
public safety requires a begin delete more lengthy end delete period of incarceration
begin insert beyond the base term end insert for this individual, begin insert as adjusted, end insert and that a
parole date, therefore, cannot be fixed at this meeting. begin delete After end delete

begin insert (i) end insert begin insert   end insert begin insert After end insert begin delete the effective date of this subdivision end delete begin insert July 31, 2001 end insert , any
decision of the parole panel finding an inmate suitable for parole
shall become final within 120 days of the date of the hearing.
During that period, the board may review the panel’s decision.
The panel’s decision shall become final pursuant to this subdivision
unless the board finds that the panel made an error of law, or that
the panel’s decision was based on an error of fact, or that new
information should be presented to the board, any of which when
corrected or considered by the board has a substantial likelihood
of resulting in a substantially different decision upon a rehearing.
In making this determination, the board shall consult with the
commissioners who conducted the parole consideration hearing.
begin delete No end delete begin insert A end insert decision of the parole panel shall begin insert not end insert be disapproved and
referred for rehearing begin insert by the board end insert except by a majority vote of
the begin delete board end delete begin insert commissioners end insert , sitting en banc, following a public
meeting.

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(c)

end delete

begin insert (j) end insert  For the purpose of reviewing the suitability for parole of
those inmates eligible for parole under prior law at a date earlier
than that calculated under Section 1170.2, the board shall appoint
panels of at least two persons to meet annually with each inmate
until the time the person is released pursuant to proceedings or
reaches the expiration of his or her term as calculated under Section
1170.2.

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(d)

end delete

begin insert (k) end insert  It is the intent of the Legislature that, during times when
there is no backlog of inmates awaiting parole hearings, life parole
consideration hearings, or life rescission hearings, hearings will
be conducted by a panel of three or more members, the majority
of whom shall be commissioners. The board shall report monthly
on the number of cases where an inmate has not received a
completed initial or subsequent parole consideration hearing within
30 days of the hearing date required by subdivision (a) of Section
3041.5 or paragraph (2) of subdivision (b) of Section 3041.5, unless
the inmate has waived the right to those timeframes. That report
shall be considered the backlog of cases for purposes of this
section, and shall include information on the progress toward
eliminating the backlog, and on the number of inmates who have
waived their right to the above timeframes. The report shall be
made public at a regularly scheduled meeting of the board and a
written report shall be made available to the public and transmitted
to the Legislature quarterly.

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(e)

end delete

begin insert (l) end insert  For purposes of this section, an en banc review by the board
means a review conducted by a majority of commissioners holding
office on the date the matter is heard by the board. An en banc
review shall be conducted in compliance with the following:

(1) The commissioners conducting the review shall consider
the entire record of the hearing that resulted in the tie vote.

(2) The review shall be limited to the record of the hearing. The
record shall consist of the transcript or audiotape of the hearing,
written or electronically recorded statements actually considered
by the panel that produced the tie vote, and any other material
actually considered by the panel. New evidence or comments shall
not be considered in the en banc proceeding.

(3) The board shall separately state reasons for its decision to
grant or deny parole. begin insert The board’s stated reasons shall demonstrate,
on the record, an individualized consideration of all relevant
factors. end insert begin insert In the case of an inmate who has served beyond his or
her base term of incarceration, as adjusted, a decision by the board
to deny parole shall be supported by substantial evidence and with
respect to the entire record. end insert

(4) A commissioner who was involved in the tie vote shall be
recused from consideration of the matter in the en banc review.

begin insert

(m) (1) The board shall collect and maintain statistics that
show, annually, the number of inmates in state prison who are
serving a term in excess of their base term of incarceration, as
adjusted by applicable enhancements or credits, and the percentage
of all cases decided each year in which the board, in a final
decision, by a panel or the board sitting en banc, has declined to
find an inmate suitable for parole, despite the fact that the inmate
has served a sentence beyond the base term of incarceration, as
adjusted by applicable enhancements or credits.

end insert begin insert

(2) The board shall submit a report to the Legislature detailing
the information collected pursuant to paragraph (1) and shall
submit the report on or before January 1, 2016, and annually
thereafter, notwithstanding Section 10231.5 of the Government
Code.

end insert begin insert

(3) The report required by this subdivision shall be submitted
pursuant to Section 9795 of the Government Code.

end insert

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SECTION 1.  

It is the intent of the Legislature to enact
legislation relating to sentencing and parole.

end delete