BILL NUMBER: SB 126 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 10, 2000
AMENDED IN SENATE JANUARY 18, 2000
AMENDED IN SENATE APRIL 27, 1999
AMENDED IN SENATE APRIL 15, 1999
AMENDED IN SENATE MARCH 25, 1999
AMENDED IN SENATE FEBRUARY 25, 1999
INTRODUCED BY Senator Polanco
DECEMBER 22, 1998
An act to amend Section 1170 of, and to add Section
2808.3 to, the Penal Code, relating to corrections. An
act to add Section 208.7 to the Welfare and Institutions Code,
relating to juvenile offenders.
LEGISLATIVE COUNSEL'S DIGEST
SB 126, as amended, Polanco. Corrections: inmate
rehabilitation: Prison Industry Authority State
Incarcerated Youth Ombudsperson .
Existing law directs the Board of Corrections to conduct biennial
inspections of each jail, juvenile hall, lockup, or special purpose
juvenile hall that was used to confine a minor during the preceding
calendar year.
This bill would create the Office of the State Incarcerated Youth
Ombudsperson to provide assistance to persons who are at least 10
years of age, but not more than 21 years of age, who are within the
jurisdiction of the juvenile court on the basis of criminal conduct,
and who are detained in or confined to juvenile homes and camps,
facilities operated by the Department of the Youth Authority, or
private facilities licensed to house more than 12 minors, in
resolving issues related to their placement, care, or services.
The bill would provide that the Governor shall appoint the
ombudsperson to a 4-year term. The bill would direct the
ombudsperson to investigate incidents involving persons who are
eligible to receive assistance from the ombudsperson. Among other
things, the bill would require the ombudsperson to compile and make
available to the Legislature specified data collected relating to
these duties. The bill would authorize the ombudsperson to examine
records and documents of any juvenile home or camp, a facility
operated by the Department of the Youth Authority, or any private
facility licensed to house more than 12 minors, that is used for the
detention or incarceration of persons who are eligible to receive
assistance from the ombudsperson. The ombudsperson would also have
access to any record of a state or local agency that is necessary to
carry out his or her duties.
The bill would provide that a court shall issue an order requiring
compliance with a request of the ombudsperson, as specified, to any
person who willfully obstructs or hinders the ombudsperson in the
proper and lawful exercise of his or her duties, or who willfully
misleads or attempts to mislead the ombudsperson in his or her
inquiries or investigation.
The bill would also provide that the ombudsperson and his or her
staff would have the same immunity from civil and criminal liability
as a judge.
The Department of Corrections or a county probation department
would be required to respond to the ombudsperson regarding action
taken on recommendations of the ombudsperson or the reasons for not
taking that action, thus establishing a state-mandated local program.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement, including the creation of a State Mandates Claims Fund
to pay the costs of mandates that do not exceed $1,000,000 statewide
and other procedures for claims whose statewide costs exceed
$1,000,000.
This bill would provide that, if the Commission on State Mandates
determines that the bill contains costs mandated by the state,
reimbursement for those costs shall be made pursuant to these
statutory provisions.
(1) Existing law states the findings and declarations of the
Legislature that (a) the purpose of imprisonment for crime is
punishment, (b) 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 (c) 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 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 that the intent of the Legislature is to
encourage the development of policies and programs consistent with
the intent to reduce the rate of recidivism.
(2) Existing law establishes the Prison Industry Authority under
the direction of the Prison Industry Board and specifies the powers
and duties of the board, its membership, and their compensation. The
authority has jurisdiction over the operation of all industrial,
agricultural, and service operations. Existing law also creates the
Prison Industries Revolving Fund that is used to meet the expenses of
the prison industries program, as specified. The board is also
authorized to borrow money from the state and private sources to
finance the program. The authority determines which work programs
are to be established and the products to be made.
This bill would require the Department of Finance, in consultation
with the Prison Industry Authority and the Legislative Analyst's
Office, to develop a display in the annual Governor's Budget,
consistent with its accounting and budgeting system, of expenditures
and revenues for the Prison Industry Authority.
Vote: majority. Appropriation: no. Fiscal committee: yes.
State-mandated local program: no yes .
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1170 of the Penal Code is
SECTION 1. Section 208.7 is added to the Welfare and Institutions
Code, to read:
208.7. (a) (1) There is hereby created the Office of the State
Incarcerated Youth Ombudsperson.
(2) The Governor shall appoint the State Incarcerated Youth
Ombudsperson. The appointment shall be for a term of four years.
The Governor shall make his or her decision in consultation with a
committee comprised of at least seven but not more than 10 persons,
including at least one representative each of county probation
officers, the Department of the Youth Authority, the Board of
Corrections, juvenile court judges, and youth advocacy organizations.
The Director of the Youth Authority shall select the committee
members, the majority of whom shall be representatives of youth
advocacy organizations.
(3) The position of State Incarcerated Youth Ombudsperson shall be
a full-time position and the person appointed to that position shall
not be employed in any other capacity. The ombudsperson shall be a
person of recognized judgment, objectivity, and integrity who is
qualified by training and experience to analyze problems of law
enforcement, corrections administration, and public policy. The
ombudsperson shall not do any of the following:
(A) Be actively involved in political party activities.
(B) Be a candidate for or hold other public office, whether
elective or appointive.
(C) Be engaged in any other full-time occupation, business, or
profession.
(b) The Office of the State Incarcerated Youth Ombudsperson shall
provide assistance to persons who are at least 10 years of age but
not more than 21 years of age, who are within the jurisdiction of the
juvenile court pursuant to Section 602, and who are detained in or
committed to a juvenile home or camp, a facility operated by the
Department of the Youth Authority, or a private facility licensed to
house more than 12 minors. The Office of the State Incarcerated
Youth Ombudsperson shall do all of the following:
(1) Disseminate information regarding the rights of persons to
whom the ombudsperson is authorized to provide assistance pursuant to
this section and regarding the types of assistance available. The
information shall include a notice that conversations with the office
may not be confidential.
(2) Investigate and attempt to resolve complaints related to care,
placement, or services made by or on behalf of persons eligible to
receive assistance from the ombudsperson. The office shall
investigate, upon complaint or upon his or her own initiative, any
incident involving a person eligible to receive assistance from the
ombudsperson that occurred in a juvenile home or camp, in a facility
operated by the Department of the Youth Authority, or in a private
facility licensed to house more than 12 minors if the incident comes
within any of the following descriptions:
(A) Is contrary or inconsistent with law or Department of
Corrections practice.
(B) Is inadequately explained when reasons should have been
revealed.
(C) Is inefficiently performed.
(D) Is unreasonable, unfair, or otherwise objectionable, even
though in accordance with law.
(3) Determine whether to investigate a complaint or refer
complaints to another agency for investigation. The ombudsperson may
decide not to investigate a complaint or incident under either of
the following conditions:
(A) The complaint is trivial, frivolous, vexatious, or was not
made in good faith.
(B) The complaint has been too long delayed to justify present
examination. If the office decides to investigate a complaint, then
it shall (A) notify the complainant of the intention to investigate,
(B) update the complainant on the progress of the investigation, and
(C) notify the complainant of the final outcome. If the office
declines to investigate a complaint or continue an investigation, the
office shall notify the complainant of the reasons for declining to
investigate.
(4) Document the number, source, location, and nature of the
complaints submitted to the office.
(5) Compile and make available to the Legislature all data
collected over the course of the year, including, but not limited to,
the number of calls to the toll-free telephone number, the number of
complaints made, the number of investigations performed by the
office, the number of referrals made, and the number of unresolved
complaints.
(6) Collaborate with local ombudspersons.
(c) The ombudsperson shall hire the necessary personnel to perform
the functions of the office. He or she shall have the power to do
all of the following:
(1) Investigate, upon complaint or upon his or her own initiative,
any incident involving a person who is eligible to receive services
provided by the ombudsperson that occurred in a juvenile home or
camp, at a facility operated by the Department of the Youth
Authority, or in a private facility licensed to house more than 12
minors that is used for the detention or confinement of any person
who is eligible to receive assistance from the ombudsperson.
(2) Adopt rules necessary for the discharge of the duties of the
office, including procedures for receiving and processing complaints,
conducting investigations, and reporting findings.
(3) Examine records and documents of any juvenile home or camp, a
facility operated by the Department of the Youth Authority, or any
private facility licensed to house more than 12 minors that is used
for the detention or confinement of a person who is eligible to
receive assistance from the ombudsperson.
(4) Enter and inspect without notice any juvenile home or camp,
the Youth Authority, or any private facility licensed to house more
than 12 minors used for the detention or confinement of a person who
is eligible to receive assistance from the ombudsperson.
(5) Subpoena any person to appear, to give sworn testimony, or to
produce documentary or other evidence that is reasonably material to
an inquiry authorized pursuant to this section.
(6) Undertake, participate in, or cooperate with persons and
agencies in conferences, inquiries, meetings, or studies that may
lead to improvements in the functioning of the juvenile homes and
camps, facilities operated by the Department of the Youth Authority,
and private facilities licensed to house more than 12 minors that are
used for the detention or confinement of a person who is eligible to
receive assistance from the ombudsperson.
(7) Establish and administer a budget for the office.
(d) Notwithstanding any other provision of state law, to the
extent consistent with federal law, the ombudsperson shall have
access to any record of a state or local agency that is necessary to
carry out his or her responsibilities, and may meet or communicate
with any person who is detained or confined in a juvenile home or
camp, a facility operated by the Department of the Youth Authority,
or private facility licensed to house more than 12 minors if that
person is eligible to receive assistance from the ombudsperson.
(e) The ombudsperson shall treat confidentially all matters and
the identities of the complainants and witnesses. The ombudsperson
shall not levy any fees for the submission or investigation of
complaints.
(f) In his or her efforts to resolve complaints made pursuant to
this section, the ombudsperson may do any of the following:
(1) Conduct any investigation he or she deems necessary.
(2) Attempt to resolve complaints informally.
(3) Submit a written plan to the relevant state or county agency
recommending a course of action to resolve the complaint. If the
ombudsperson makes a written recommendation, the state or county
agency shall submit a written response to the ombudsperson within 30
business days.
(g) A toll-free telephone number shall be established for the
office. The toll-free telephone number shall be posted next to each
telephone that is located in a juvenile home or camp, a facility
operated by the Department of the Youth Authority, or a private
facility licensed to house more than 12 minors, and that is
authorized for use by persons who are eligible to receive assistance
from the ombudsperson.
(h) After investigation of any action, the ombudsperson shall
state the recommendations and reasons if, in the ombudsperson's
opinion, the Department of Corrections, or a county probation
department should:
(1) Consider the matter further.
(2) Modify or cancel any action.
(3) Alter a rule, practice, or ruling.
(4) Take any other action.
Upon request of the ombudsperson, the Department of Corrections or
a county probation department shall, within the time period
specified by the ombudsperson, inform the ombudsperson about the
action taken on the recommendations or the reasons for not complying
with them. The ombudsperson may issue a report concerning the
compliance or noncompliance of the department or the county probation
department with his or her recommendations.
The ombudsperson may request the Legislature to take any necessary
legislative action reasonably related to the performance of his or
her duties.
(i) The ombudsperson and the staff of the office shall have the
same immunity from civil and criminal liability as a judge of this
state.
(j) If any person willfully obstructs or hinders the ombudsperson
in the proper and lawful exercise of his or her duties, or willfully
misleads or attempts to mislead the ombudsperson in his or her
inquiries or investigation, the court, on application of the
ombudsperson, shall issue an order mandating compliance with a
request made by the ombudsperson that is necessary and proper to
carry out his or her duties.
(k) No person who files a complaint with the ombudsperson shall be
subject to any penalties, sanctions or restrictions because of that
complaint.
(l) A letter to the ombudsperson from a person who is eligible for
services provided by the ombudsperson who is detained or confined
shall be forwarded immediately, unopened to the ombudsperson. A
letter from the ombudsperson to a person who is eligible to receive
assistance from the ombudsperson shall be immediately delivered,
unopened, to the person.
SEC. 2. Notwithstanding Section 17610 of the Government Code, if
the Commission on State Mandates determines that this act contains
costs mandated by the state, reimbursement to local agencies and
school districts for those costs shall be made pursuant to Part 7
(commencing with Section 17500) of Division 4 of Title 2 of the
Government Code. If the statewide cost of the claim for
reimbursement does not exceed one million dollars ($1,000,000),
reimbursement shall be made from the State Mandates Claims Fund.
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), 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.
SEC. 2. Section 2808.3 is added to the Penal Code, to read:
2808.3. The Department of Finance, in consultation with the
Prison Industry Authority (PIA) and the Legislative Analyst's Office,
shall develop a display in the annual Governor's Budget, consistent
with its existing commercial accounting and budgeting system, of
expenditures and revenues for the PIA, the Prison Industry Board, and
the Prison Industries Revolving Fund.