BILL NUMBER: SB 126 INTRODUCED
BILL TEXT
INTRODUCED BY Senator Polanco
DECEMBER 22, 1998
An act to amend Section 1170 of the Penal Code, relating to
sentencing.
LEGISLATIVE COUNSEL'S DIGEST
SB 126, as introduced, Polanco. Sentencing.
Existing law states the findings and declarations of the
Legislature that (1) the purpose of imprisonment for crime is
punishment, (2) 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, and (3) 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. Existing law provides that these findings
and declarations shall not be construed to preclude programs,
including educational programs, that are designed to rehabilitate
nonviolent, first-time felony offenders, and further provides that
the Legislature encourages the development of policies and programs
designed to educate and rehabilitate nonviolent, first-time felony
offenders consistent with the purpose of imprisonment.
This bill instead would provide that these findings and
declarations shall not be construed to preclude educational,
vocational, and drug treatment programs that are designed to
rehabilitate nonviolent, first-time felony offenders and to reduce
the rate of recidivism. The bill further would state the intent of
the Legislature to encourage the development of policies and programs
consistent with the intent to reduce the rate of recidivism.
Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1170 of the Penal Code is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best
served by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Paragraph (1) shall not be construed to preclude programs,
including educational , vocational, and drug treatment
programs, that are designed to rehabilitate nonviolent, first-time
felony offenders , and to reduce the rate of recidivism .
The Legislature encourages the development of policies and programs
designed to educate and rehabilitate nonviolent, first-time felony
offenders consistent with the purpose of imprisonment , and the
intent to reduce the rate of recidivism .
(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. 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 Director of
Corrections. 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 Director of Corrections.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports
including reports received pursuant to Section 1203.03 and statements
in aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall set forth on the record the facts and
reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under 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) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the Director of
Corrections, the court may, within 120 days of the date of commitment
on its own motion, or at any time upon the recommendation of the
Director of Corrections or the Board of Prison Terms, recall the
sentence and commitment previously ordered and resentence the
defendant in the same manner as if he or she had not previously been
sentenced, provided the new sentence, if any, is no greater than the
initial sentence. The resentence under this subdivision shall apply
the sentencing rules of the Judicial Council so as to eliminate
disparity of sentences and to promote uniformity of sentencing.
Credit shall be given for time served.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a) of Section 1170 ,
if the Director of Corrections or the Board of Prison Terms or both
determine that a prisoner satisfies the criteria set forth in
paragraph (2), the director or the board may recommend to the court
that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds both of the following:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
The Board of Prison Terms shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner
sentenced to death or a term of life without the possibility of
parole.
(3) Within 10 days of receipt of a positive recommendation by the
director or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) The prisoner or his or her family member or designee may
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the Director of Corrections.
Upon receipt of the request, if the director determines that the
prisoner satisfies the criteria set forth in paragraph (2), the
director or board may recommend to the court that the prisoner's
sentence be recalled. The director shall submit a recommendation for
release within 30 days in the case of inmates sentenced to
determinate terms and, in the case of inmates sentenced to
indeterminate terms, the director may make a recommendation to the
Board of Prison Terms with respect to the inmates who have applied
under this section. The board shall consider this information and
make an independent judgment pursuant to paragraph (2) and make
findings related thereto before rejecting the request or making a
recommendation to the court. This action shall be taken at the next
lawfully noticed board meeting.
(5) Any recommendation for recall submitted to the court by the
Director of Corrections or the Board of Prison Terms shall include
one or more medical evaluations, a postrelease plan, and findings
pursuant to paragraph (2).
(6) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(f) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.