Bill Text: CA AB1497 | 2023-2024 | Regular Session | Amended
Bill Title: Criminal procedure.
Spectrum: Partisan Bill (Democrat 5-0)
Status: (Failed) 2024-02-01 - From committee: Filed with the Chief Clerk pursuant to Joint Rule 56. [AB1497 Detail]
Download: California-2023-AB1497-Amended.html
|
Amended
IN
Assembly
March 30, 2023 |
CALIFORNIA LEGISLATURE—
2023–2024 REGULAR SESSION
Assembly Bill
No. 1497
| Introduced by Assembly Member Haney (Coauthors: Assembly Members McCarty and Wilson) (Coauthor: Senator Skinner) |
February 17, 2023 |
An act to amend Sections 28, 236.14, 236.15, 236.23, 236.24, 1170, and 1170.1 of the Penal Code, relating to criminal procedure.
LEGISLATIVE COUNSEL'S DIGEST
AB 1497, as amended, Haney.
Criminal procedure.
(1) Existing law, in a criminal trial, allows evidence of mental disease, mental defect, or mental disorder solely for the issue of whether or not the accused actually formed a required specific intent, premeditated, deliberated, or harbored malice aforethought, when a specific intent crime is charged.
This bill would instead allow that evidence for the issue of whether or not the accused actually formed the required mental state for the crime that is charged, including whether or not the accused committed a willful act, premeditated, deliberated, harbored malice aforethought, acted knowingly, acted maliciously, or acted with conscious disregard for human life.
(2) Existing law allows a person who was arrested or convicted of a nonviolent offense while they
were a victim of human trafficking, intimate partner violence, or sexual violence, to petition the court, under penalty of perjury, for vacatur relief. To receive that relief, existing law requires that the person establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking, intimate partner violence, or sexual violence, which demonstrates that the person lacked the requisite intent to commit the offense. Existing law requires the court, under those circumstances, to find that the person lacked the requisite intent to commit the offense and to vacate the conviction as invalid due to legal defect at the time of the arrest or conviction.
This bill would allow that relief for a person arrested or convicted of any offense. By expanding the scope of the crime of perjury, this bill would impose a state-mandated local program.
(3) Existing law creates an affirmative defense against a charge of a crime that the person was coerced to commit the offense as a direct result of being a victim of human trafficking, intimate partner violence, or sexual violence at the time of the offense and when the person had reasonable fear of harm. Existing law prohibits this defense from being used with respect to a violent felony, as defined.
This bill would allow that defense to be used with respect to a violent felony.
(4) If a court issues an order for a person who was arrested or convicted of an offense while they were a victim of intimate partner violence or sexual violence, existing law requires the court to order the law enforcement agency having jurisdiction over the offense, the Department of Justice, and any law enforcement agency that arrested the petitioner or participated in the arrest of the petitioner to seal their
records of the arrest and the court order to seal and destroy the records within 3 years from the date of the arrest, or within one year after the court order is granted, whichever occurs later, and thereafter to destroy their records of the arrest and the court order to seal and destroy those records.
This bill would require the court to also order any law enforcement agency that has taken action or maintains records because of the offense, including, but not limited to, departments of probation, rehabilitation, corrections, and parole, to seal and destroy their records. The bill would require the agencies mentioned above to seal their records of arrest and court order to seal and destroy the records within one year from the date of arrest, or within 90 days after the court order is granted, whichever occurs later. The bill would require the agencies to destroy these records within one year of the date of the court order. The bill would also require the Department
of Justice to notify the petitioner and the petitioner’s counsel that the department has complied with the order to seal the arrest records by the applicable deadline.
(5) Existing law requires the court, when a judgment of imprisonment is imposed and specifies 3 possible terms, to impose the middle term unless there are circumstances in aggravation or mitigation of the crime. Existing law requires the court to order imposition of a lower term if the person has experienced psychological, physical, or childhood trauma, is or was a youth, as defined, at the time of the commission of the offense, or was a victim of intimate partner violence or human trafficking, unless the aggravating circumstances so far outweigh the mitigating circumstances that the imposition of the lower term would be contrary to the interests of justice.
This bill would require the court, when deciding whether the aggravating
circumstances outweigh the mitigating circumstances, to only consider those aggravating circumstances that have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. The bill would require the court, except in specified circumstances, to, upon the request of the defendant, bifurcate the trial on the circumstances in aggravation from the trial of charges and enhancements.
(6) Existing law requires a person convicted of 2 or more felonies to be sentenced to an aggregate term of imprisonment for all convictions at a sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements, prior convictions, and prior prison terms. Under existing law, a principal term consists of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable enhancements. Under existing
law, the subordinate term for each consecutive offense is 1/3 of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, including 1/3 of the term imposed for any specific enhancements applicable to those subordinate offenses.
This bill would, unless contrary to the interests of justice, prohibit a court from imposing consecutive terms for 2 or more felonies if the person has experienced psychological, physical, or childhood trauma, is or was a youth at the time of the commission of the offense, or was a victim of intimate partner violence or human trafficking prior to the instant offense, or at the time of the commission of the offense.
(7) Existing law imposes various sentence enhancements, consisting of additional and consecutive terms of imprisonment.
This bill would prohibit a
court, unless contrary to the interests of justice, from imposing a term of imprisonment for any sentence enhancement if the person has experienced psychological, physical, or childhood trauma, is or was a youth at the time of the commission of the offense, or was a victim of intimate partner violence or human trafficking prior to the instant offense, or at the time of the commission of the offense.
(8) 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.
This bill would provide that no reimbursement is required by this act for a specified reason.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: YESBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 28 of the Penal Code is amended to read:28.
(a) Evidence of mental disease, mental defect, or mental disorder shall not be admitted to show or negate the capacity to form any mental state, including, but not limited to, purpose, intent, knowledge, premeditation, deliberation, or malice aforethought, with which the accused committed the act. Evidence that an individual suffers from a mental disease, mental defect, or mental disorder is admissible on the issue of whether or not the accused actually formed the required mental state for the crime that is charged, including whether or not the accused committed a willful act, premeditated, deliberated, harbored malice aforethought, acted knowingly, acted maliciously, or acted with conscious disregard for human life.(b) As a matter of public policy there shall be no defense of diminished capacity, diminished responsibility, or irresistible impulse in a criminal action or juvenile adjudication hearing.
(c) This section shall not be applicable to an insanity hearing pursuant to Section 1026.
(d) Nothing in this section shall limit a court’s discretion, pursuant to the Evidence Code, to exclude psychiatric or psychological evidence on whether the accused had a mental disease, mental defect, or mental disorder at the time of the alleged offense.
SEC. 2.
Section 236.14 of the Penal Code is amended to read:236.14.
(a) If a person was arrested for or convicted of an offense committed while they were a victim of human trafficking, including, but not limited to, prostitution as described in subdivision (b) of Section 647, the person may petition the court for vacatur relief of their convictions, arrests, and adjudications under this section. The petitioner shall establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of human trafficking(b) The petition for relief shall be submitted under penalty of perjury and shall describe all of the available grounds and evidence that the petitioner was a victim of human trafficking and the arrest or conviction of an offense was the direct result of being a victim of human trafficking.
(c) The petition for relief and supporting documentation shall be served on the state or local prosecutorial agency that obtained the conviction for which vacatur is sought or with jurisdiction over charging decisions with regard to the arrest. The state or local prosecutorial agency shall have 45 days from the date of
receipt of service to respond to the petition for relief.
(d) If opposition to the petition is not filed by the applicable state or local prosecutorial agency, the court shall deem the petition unopposed and may grant the petition.
(e) The court may, with the agreement of the petitioner and all of the involved state or local prosecutorial agencies, consolidate into one hearing a petition with multiple convictions from different jurisdictions.
(f) If the petition is opposed or if the court otherwise deems it necessary, the court shall schedule a hearing on the petition. The hearing may consist of the following:
(1) Testimony by the petitioner, which may be
required in
support of the petition.
(2) Evidence and supporting documentation in support of the petition.
(3) Opposition evidence presented by any of the involved state or local prosecutorial agencies that obtained the conviction.
(g) After considering the totality of the evidence presented, the court may vacate the conviction and the arrests and issue an order if it finds all of the following:
(1) That the petitioner was a victim of human trafficking at the time of the alleged commission of the crime.
(2) The arrest for or conviction of the crime was a direct result of being a victim of human
trafficking.
(3) It is in the best interest of justice.
(h) An order of vacatur shall do all of the following:
(1) Set forth a finding that the petitioner was a victim of human trafficking at the time of the alleged commission of the crime and therefore lacked the requisite intent to commit the offense.
(2) Set aside the arrest, finding of guilt, or the adjudication and dismiss the accusation or information against the petitioner as invalid due to a legal defect at the time of arrest or conviction.
(3) Notify the Department of Justice that the petitioner was a victim of human trafficking when they
committed the crime and of the relief that has been ordered.
(i) Notwithstanding this section, a petitioner shall not be relieved of any financial restitution order that directly benefits the victim of a crime, crime unless it has already been paid. With the exception of restitution, the collection of fines imposed as a result of an offense that is the subject of the petition shall be stayed while the petition is pending.
(j) A person who was arrested as, or found to be, a person described in Section 602 of the Welfare and Institutions Code because they committed an offense while they were a victim of
human trafficking, including, but not limited to, prostitution, as described in subdivision (b) of Section 647, may petition the court for relief under this section. If the petitioner establishes that the arrest or adjudication was the direct result of being a victim of human trafficking trafficking, the petitioner is entitled to a rebuttable presumption that the requirements for relief have been met.
(k) (1) If the court issues an order as described in subdivision (a) or (j), the court shall also order all of the following agencies to seal and destroy their records:
(A) Any law
enforcement agency having jurisdiction over the offense.
(B) The Department of Justice.
(C) Any law enforcement agency that arrested the petitioner.
(D) Any law enforcement agency that participated in the arrest of the petitioner.
(E) Any law enforcement agency that has taken action or maintains records because of the offense offense, including, but not limited to, departments of probation, rehabilitation, corrections, and parole.
(2) Any
government agency described in paragraph (1) shall seal their its records of arrest and the court order to seal and destroy the records within one year from the date of arrest, arrest or within 90 days after the court order is granted, whichever occurs later. The agency shall thereafter destroy their records of the arrest and court order to seal and destroy those records within one year of the date of the court order.
(3) The court shall provide the petitioner a certified copy of any court order
concerning the sealing and destruction of the arrest records. The court shall provide the petitioner and the petitioner’s counsel a copy of any form that the court submits to any agency, including the Department of Justice, related to the sealing and destruction of the arrest records.
(4) The Department of Justice shall notify the petitioner and the petitioner’s counsel that the department has complied with the order to seal the arrest records by the applicable deadline.
(l) A petition pursuant to this section shall be made and heard at any time after the person has ceased to be a victim of human trafficking,
trafficking
or at any time after the petitioner has sought services for being a victim of human trafficking, whichever occurs later, subject to reasonable concerns for the safety of the petitioner, family members of the petitioner, or other victims of human trafficking who may be jeopardized by the bringing of the application or for other reasons consistent with the purposes of this section. The right to petition for relief pursuant to this section does not expire with the passage of time and may be made at any time after the time specified in this subdivision. A court shall not refuse to hear a petition that was properly made pursuant to this section on the basis of the petitioner’s outstanding fines and fees or the petitioner’s failure to meet the conditions of probation.
(m) (1) For the purposes of this section,
official documentation of a petitioner’s status as a victim of human trafficking may be introduced as evidence that their participation in the offense was the result of their status as a victim of human trafficking.
(2) For the purposes of this subdivision, “official documentation” means any documentation issued by a federal, state, or local agency that tends to show the petitioner’s status as a victim of human trafficking. Official documentation shall not be required for the issuance of an order described in subdivision (a).
(n) If the petition is unopposed, the petitioner may appear at all hearings on the petition, if any, by counsel. If the petition is opposed and the court orders a hearing for relief on the petition, the petitioner shall appear in person unless the court finds a compelling
reason why the petitioner cannot attend the hearing, in which case the petitioner may appear by telephone, videoconference, or by other electronic means established by the court.
(o) Notwithstanding any other law, a petitioner who has obtained an order pursuant to this section may lawfully deny or refuse to acknowledge an arrest, conviction, or adjudication that is set aside pursuant to the order.
(p) Notwithstanding any other law, the records of the arrest, conviction, or adjudication shall not be distributed to any state licensing board.
(q) The record of a proceeding related to a petition pursuant to this section that is accessible by the public shall not disclose the petitioner’s full name.
(r) A court that grants relief pursuant to this section may take additional action as appropriate under the circumstances to carry out the purposes of this section.
(s) If the court denies the application because the evidence is insufficient to establish grounds for vacatur, the denial may be without prejudice. The court may state the reasons for its denial in writing or on the record that is memorialized by transcription, audio tape, or video tape,
audiotape, or videotape, and, if those reasons are based on curable deficiencies in the application, allow the applicant a reasonable time period to cure the deficiencies upon which the court based the denial.
(t) For the purposes of this section, the following terms apply:
(1) “Vacate” means that the arrest and any adjudications or convictions suffered by the petitioner are deemed not to have occurred and that all records in the case are sealed and destroyed pursuant to this section. The court shall provide the petitioner with a copy of the orders described in subdivisions (a), (j), and (k), as applicable, and inform the petitioner that they may thereafter state that they were not arrested for the charge, or adjudicated or convicted of the
charge, that was vacated.
(2) “Victim of human trafficking” means the victim of a crime described in subdivisions (a), (b), and (c) of Section 236.1.
SEC. 3.
Section 236.15 of the Penal Code is amended to read:236.15.
(a) If a person was arrested for or convicted of an offense committed while the person was a victim of intimate partner violence or sexual violence, the person may petition the court for vacatur relief of their convictions, arrests, and adjudications under this section. The petitioner shall establish, by clear and convincing evidence, that the arrest or conviction was the direct result of being a victim of intimate partner violence or sexual violence(b) The petition for relief shall be submitted under penalty of perjury and shall describe all of the available grounds and evidence that the petitioner was a victim of intimate partner violence or sexual violence and the arrest or conviction of an offense was the direct result of being a victim of intimate partner violence or sexual violence.
(c) The petition for relief and supporting documentation shall be served on the state or local prosecutorial agency that obtained the conviction for which vacatur is sought or with jurisdiction over charging decisions with regard to the arrest. The state or
local prosecutorial agency shall have 45 days from the date of receipt of service to respond to the petition for relief.
(d) If opposition to the petition is not filed by the applicable state or local prosecutorial agency, the court shall deem the petition unopposed and may grant the petition.
(e) The court may, with the agreement of the petitioner and all of the involved state or local prosecutorial agencies, consolidate into one hearing a petition with multiple convictions from different jurisdictions.
(f) If the petition is opposed or if the court otherwise deems it necessary, the court shall schedule a hearing on the petition. The hearing may consist of the following:
(1) Testimony by the petitioner, which may be required in support of the petition.
(2) Evidence and supporting documentation in support of the petition.
(3) Opposition evidence presented by any of the involved state or local prosecutorial agencies that obtained the conviction.
(g) After considering the totality of the evidence presented, the court may vacate the conviction and expunge the arrests and issue an order if it finds all of the following:
(1) That the petitioner was a victim of intimate partner violence or sexual violence at the time of the alleged commission of the crime.
(2) The arrest or conviction of the crime was a direct result of being a victim of intimate partner violence or sexual violence.
(3) It is in the best interest of justice.
(h) An order of vacatur shall do all of the following:
(1) Set forth a finding that the petitioner was a victim of intimate partner violence or sexual violence at the time of the alleged commission of the crime and therefore lacked the requisite intent to commit the offense.
(2) Set aside the arrest, finding of guilt, or the adjudication and dismiss the accusation or information against the petitioner as invalid due to a legal defect at the time of the arrest or conviction.
(3) Notify the Department of Justice that the petitioner was a victim of intimate partner violence or sexual violence when they committed the crime and of the relief that has been ordered.
(i) Notwithstanding this section, a petitioner shall not be relieved of any financial restitution order that directly benefits the victim of an offense, offense unless it has already been paid. With the exception of restitution, the collection of fines imposed as a result of an offense that is the subject of the petition shall be stayed while the petition is pending.
(j) A person who was arrested as, or found to be, a person described in Section 602 of the Welfare and Institutions Code because they committed an offense while they were a victim of intimate partner violence or sexual violence, violence may petition the court for relief under this section. If the petitioner establishes that the arrest or adjudication was the direct result of being a victim of intimate partner violence or sexual violence violence, the petitioner is entitled to a rebuttable presumption that the requirements for relief have been met.
(k) (1) If the court issues an order as described in subdivision (a) or (j), the court shall also order all of the following agencies to seal and destroy their records:
(A) Any law enforcement agency having jurisdiction over the offense.
(B) The Department of Justice.
(C) Any law enforcement agency that arrested the petitioner.
(D) Any law enforcement agency that participated in the arrest of the petitioner.
(E) Any law enforcement agency that has taken action or maintains records because of the offense, including, but
not limited to, departments of probation, rehabilitation, corrections, and parole.
(2) Any government agency described in paragraph (1) shall seal their records of arrest and the court order to seal and destroy the records within one year from the date of arrest, the arrest or within 90 days after the court order is granted, whichever occurs later. The agency shall thereafter destroy their records of the arrest and court order to seal and destroy those records within one year of the date of the court order.
(3) The court shall provide the petitioner a certified copy of any court order concerning the
sealing and destruction of the arrest records. The court shall provide the petitioner and petitioner’s counsel a copy of any form that the court submits to any agency, including the Department of Justice, related to the sealing and destruction of the arrest records.
(4) The Department of Justice shall notify the petitioner and the petitioner’s counsel that the department has complied with the order to seal the arrest records by the applicable deadline.
(l) A petition pursuant to this section shall be made and heard at any time after the person has ceased to be a victim of intimate partner violence or sexual violence, violence
or
at any time after the petitioner has sought services for being a victim of intimate partner violence or sexual violence, whichever occurs later, subject to reasonable concerns for the safety of the petitioner, family members of the petitioner, or other victims of intimate partner violence or sexual violence who may be jeopardized by the bringing of the application or for other reasons consistent with the purposes of this section. The right to petition for relief pursuant to this section does not expire with the passage of time and may be made at any time after the time specified in this subdivision. A court shall not refuse to hear a petition that was properly made pursuant to this section on the basis of the petitioner’s outstanding fines and fees or the petitioner’s failure to meet the conditions of probation.
(m) (1) For the purposes of this section, official documentation of a petitioner’s status as a victim of intimate partner violence or sexual violence may be introduced as evidence that their participation in the offense was the result of their status as a victim of intimate partner violence or sexual violence.
(2) For the purposes of this subdivision, “official documentation” means any documentation issued by a federal, state, or local agency that tends to show the petitioner’s status as a victim of intimate partner violence or sexual violence. Official documentation shall not be required for the issuance of an order described in subdivision (a).
(n) If the petition is unopposed, the petitioner may appear at all hearings on the petition, if any, by counsel. If the
petition is opposed and the court orders a hearing for relief on the petition, the petitioner shall appear in person unless the court finds a compelling reason why the petitioner cannot attend the hearing, in which case the petitioner may appear by telephone, via videoconference, or by other electronic means established by the court.
(o) Notwithstanding any other law, a petitioner who has obtained an order pursuant to this section may lawfully deny or refuse to acknowledge an arrest, conviction, or adjudication that is set aside pursuant to the order.
(p) Notwithstanding any other law, the records of the arrest, conviction, or adjudication shall not be distributed to any state licensing board.
(q) The record of a
proceeding related to a petition pursuant to this section that is accessible by the public shall not disclose the petitioner’s full name.
(r) A court that grants relief pursuant to this section may take additional action as appropriate under the circumstances to carry out the purposes of this section.
(s) If the court denies the application because the evidence is insufficient to establish grounds for vacatur, the denial may be without prejudice. The court may state the reasons for its denial in writing or on the record that is memorialized by transcription, audio tape, or video tape, audiotape, or videotape,
and if those reasons are based on curable deficiencies in the application, allow the applicant a reasonable time period to cure the deficiencies upon which the court based the denial.
(t) For the purposes of this section, “vacate” means that the arrest and any adjudications or convictions suffered by the petitioner are deemed not to have occurred and that all records in the case are sealed and destroyed pursuant to this section. The court shall provide the petitioner with a copy of the orders described in subdivisions (a), (j), and (k), as applicable, and inform the petitioner that they may thereafter state that they were not arrested for the charge, or adjudicated or convicted of the charge, that was vacated.
SEC. 4.
Section 236.23 of the Penal Code is amended to read:236.23.
(a) In addition to any other affirmative defense, it is a defense to a charge of a crime that the person was coerced to commit the offense as a direct result of being a human trafficking victim at the time of the offense and had a reasonable fear of harm.(b) A defendant asserting the affirmative defense specified in subdivision (a) has the burden of establishing the affirmative defense by a preponderance of the evidence.
(c) Certified records of a federal, state, tribal, or local court or governmental agency documenting the person’s status as a victim of human trafficking at the time of the offense, including identification of a
victim of human trafficking by a peace officer pursuant to Section 236.2 and certified records of approval notices or enforcement certifications generated from federal immigration proceedings, may be presented to establish an affirmative defense pursuant to this section. Information contained in governmental agency reports, which is relevant to the identification of a victim of human trafficking by a peace officer pursuant to Section 236.2, may be presented pursuant to this subdivision even if a peace officer did not make an identification pursuant to Section 236.2.
(d) The affirmative defense may be asserted at any time before the entry of a plea of guilty or nolo contendere or admission to the truth of the charges and before the conclusion of any trial for the offense. If asserted before the preliminary hearing held in a case, the
affirmative defense shall, upon request by the defendant, be determined at the preliminary hearing.
(e) If the defendant prevails on the affirmative defense provided under subdivision (a), the defendant is entitled to all of the following relief:
(1) (A) The court shall order that all records in the case be sealed pursuant to Section 851.86.
(B) Records that have been sealed pursuant to this paragraph may be accessed, inspected, or utilized by law enforcement for subsequent investigatory purposes involving persons other than the defendant.
(2) The person shall be released from all penalties and disabilities resulting from the charge, and
all actions and proceedings by law enforcement personnel, courts, or other government employees that led to the charge shall be deemed not to have occurred.
(3) (A) The person may in all circumstances state that they have never been arrested for, or charged with, the crime that is the subject of the charge or conviction, including without limitation in response to questions on employment, housing, financial aid, or loan applications.
(B) The person may not be denied rights or benefits, including, without limitation, employment, housing, financial aid, welfare, or a loan or other financial accommodation, based on the arrest or charge or their failure or refusal to disclose the existence of or information concerning those events.
(C) The person may not be thereafter charged or convicted of perjury or otherwise of giving a false statement by reason of having failed to disclose or acknowledge the existence of the charge, or any arrest, indictment, trial, or other proceedings related thereto.
(f) If, in a proceeding pursuant to Section 602 of the Welfare and Institutions Code, the juvenile court finds that the offense on which the proceeding is based was committed as a direct result of the minor being a human trafficking victim, and the affirmative defense established in subdivision (a) is established by a preponderance of the evidence, the court shall dismiss the proceeding and order the relief prescribed in Section 786 of the Welfare and Institutions Code.
SEC. 5.
Section 236.24 of the Penal Code is amended to read:236.24.
(a) In addition to any other affirmative defense, it is a defense to a charge of a crime that the person was coerced to commit the offense as a direct result of being a victim of intimate partner violence or sexual violence at the time of the offense and had a reasonable fear of harm.(b) A defendant asserting the affirmative defense specified in subdivision (a) has the burden of establishing the affirmative defense by a preponderance of the evidence.
(c) Certified records of a federal, state, tribal, or local court or
governmental agency documenting the person’s status as a victim of intimate partner violence or sexual violence at the time of the offense, including identification of a victim of intimate partner violence or sexual violence by a peace officer and certified records of approval notices or enforcement certifications generated from federal immigration proceedings, may be presented to establish an affirmative defense pursuant to this section. Information contained in governmental agency reports, which is relevant to the identification of a victim of intimate partner violence or sexual violence, may be presented pursuant to this subdivision even if the defendant was not then identified as a victim of intimate partner violence or sexual violence.
(d) The affirmative defense may be asserted at any time before the entry of a plea of
guilty or nolo contendere or admission to the truth of the charges and before the conclusion of any trial for the
offense. If asserted before the preliminary hearing held in a case, the affirmative defense shall, upon request by the defendant, be determined at the preliminary hearing.
(e) If the defendant prevails on the affirmative defense provided under subdivision (a), the defendant is entitled to all of the following relief:
(1) (A) The court shall order that all records in the case be sealed pursuant to Section 851.86.
(B) Records that have been sealed pursuant to this paragraph may be accessed, inspected, or utilized by law enforcement for subsequent investigatory purposes involving persons other than the defendant.
(2) The
person shall be released from all penalties and disabilities resulting from the charge, and all actions and
proceedings by law enforcement personnel, courts, or other government employees that led to the charge shall be deemed not to have occurred.
(3) (A) The person may in all circumstances state that they have never been arrested for, or charged with, the crime that is the subject of the charge or conviction, including without limitation in response to questions on employment, housing, financial aid, or loan applications.
(B) The person may not be denied rights or benefits, including, without limitation, employment, housing, financial aid, welfare, or a loan or other financial accommodation, based on the arrest or charge or their failure or refusal to disclose the existence of or information concerning those events.
(C) The person may not be thereafter charged or convicted of perjury or otherwise of giving a false statement by reason of having failed to disclose or acknowledge the existence of the charge, or any arrest, indictment, trial, or other proceedings related thereto.
(f) If, in a proceeding pursuant to Section 602 of the Welfare and Institutions Code, the juvenile court finds that the offense on which the proceeding is based was committed as a direct result of the minor being a victim of intimate partner violence or sexual violence, and the affirmative defense established in subdivision (a) is established by a preponderance of the evidence, the court shall dismiss the proceeding and order the relief prescribed in Section 786 of the Welfare and Institutions
Code.
SEC. 6.
Section 1170 of the Penal Code is amended to read:1170.
(a) (1) The Legislature finds and declares that the purpose of sentencing is public safety achieved through punishment, rehabilitation, and restorative justice. When a sentence includes incarceration, this purpose is best served by terms that are proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances.(2) The Legislature further finds and declares that programs should be available for incarcerated persons, including, but not limited to, educational, rehabilitative, and restorative justice programs that are designed to promote behavior change and to prepare
all eligible offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate all eligible offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to allow all eligible incarcerated persons the opportunity to enroll in programs that promote successful return to the community. The Department of Corrections and Rehabilitation is directed to establish a mission statement consistent with these principles.
(3) In any case in which the sentence prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), 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 they had committed their 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 sentence 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 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, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that they shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation 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, postrelease community supervision, or mandatory supervision. The sentence shall be deemed a separate prior prison term or a sentence of imprisonment in a county jail under subdivision (h) for purposes of Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b) (1) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation of the crime that justify the imposition of a term of imprisonment
exceeding the middle term, term and the facts underlying those circumstances have been stipulated to by the defendant, defendant or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the circumstances in aggravation alleged in the indictment or information shall be bifurcated from the
trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(3) Notwithstanding paragraphs (1) and (2), the court may consider the defendant’s prior convictions in determining sentencing based on a certified record of conviction without submitting the prior convictions to a jury. This paragraph does not apply to enhancements imposed on prior convictions.
(4) 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,
report or to present additional facts. 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.
(5) The court shall set forth on the record the facts and reasons for choosing the sentence imposed. 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.
(6) Notwithstanding paragraph (1), and unless the court finds that the aggravating circumstances outweigh the mitigating circumstances that imposition of the lower term would be contrary to the interests of justice, the court shall order imposition of the lower term if any of the following was a contributing factor in the commission of the offense:
(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B) The person is a youth, youth or was a youth as defined under subdivision (b) of Section
1016.7 at the time of the commission of the offense.
(C) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(7) Paragraph (6) does not preclude the court from imposing the lower term even if there is no evidence of those circumstances listed in paragraph (6) present. When deciding whether the aggravating circumstances outweigh the mitigating circumstances within the meaning of paragraph (6), a court may only consider those aggravating circumstances that have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial. Except where evidence supporting an aggravating circumstance is admissible to
prove or defend against the charged offense or enhancement at trial, or it is otherwise authorized by law, upon request of a defendant, trial on the aggravating circumstance alleged in the indictment or information shall be bifurcated from the trial of charges and enhancements. The jury shall not be informed of the bifurcated allegations until there has been a conviction of a felony offense.
(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 they may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d) (1) (A) 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 been incarcerated for at least 15 years, the defendant may submit to the sentencing court a petition for recall and resentencing.
(B) Notwithstanding subparagraph (A), this paragraph shall not apply to defendants sentenced to life without parole for an offense where it was pled and proved that the defendant tortured, as described in Section 206, their 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.
(2) 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 the defendant 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 their remorse and work towards rehabilitation, and the defendant’s statement that one of the following is true:
(A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B) 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.
(C) The defendant committed the offense with at least one adult codefendant.
(D) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(3) If any of the information required in paragraph (2) 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.
(4) 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, petition unless a continuance is granted for good cause.
(5) If the court finds by a preponderance of the evidence that one or more of the statements specified in subparagraphs (A) to (D), inclusive, of paragraph (2) is true, the court shall recall the sentence
and commitment previously ordered and hold a hearing 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.
(6) The factors that the court may consider when determining whether to resentence the defendant to a term of imprisonment with the possibility of parole include, but are not limited to, the following:
(A) The defendant was convicted pursuant to felony murder or aiding and abetting murder provisions of law.
(B) 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 defendant was sentenced to life without the possibility of parole.
(C) The defendant committed the offense with at least one adult
codefendant.
(D) Prior to the offense for which the defendant was sentenced to life without the possibility of parole, the defendant had insufficient adult support or supervision and had suffered from psychological or physical trauma, trauma or significant stress.
(E) The defendant suffers from cognitive limitations due to mental illness, developmental disabilities, or other factors that did not constitute a defense, defense but
influenced the defendant’s involvement in the offense.
(F) The defendant has performed acts that tend to indicate rehabilitation or the potential for rehabilitation, including, but not limited to, availing themselves of rehabilitative, educational, or vocational programs, if those programs have been available at their classification level and facility, using self-study for self-improvement, or showing evidence of remorse.
(G) The defendant has maintained family ties or connections with others through letter writing, calls, or visits, visits or has eliminated contact with individuals outside of prison who are
currently involved with crime.
(H) 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.
(7) The court shall have the discretion 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 paragraph (6). 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.
(8) Notwithstanding paragraph (7), the court
may also resentence the defendant to a term that is less than the initial sentence if any of the following were a contributing factor in the commission of the alleged offense:
(A) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(B) The person is a youth, youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(C) Prior to the instant offense, or at the time of the commission of the
offense, the person is or was a victim of intimate partner violence or human trafficking.
(9) Paragraph (8) does not prohibit the court from resentencing the defendant to a term that is less than the initial sentence sentence, even if none of the circumstances listed in paragraph (8) are present.
(10) If the sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole, 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 the
sentence is not recalled or the defendant is resentenced to imprisonment for life without the possibility of parole 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.
(11) In addition to the criteria in paragraph (6) (6), 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.
(12) This subdivision shall have retroactive application.
(13) Nothing in this paragraph is intended to diminish or abrogate any rights or remedies otherwise available to the defendant.
(e) Notwithstanding subdivision (a), the court may recall and resentence an incarcerated person pursuant to the compassionate release program set forth in Section 1172.2.
(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 the defendant is required to register as a sex offender shall not be
subject to dismissal pursuant to Section 1385.
(g) A sentence to the 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 the 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) (A) Unless the court finds, in the interest of justice, that it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the court’s discretion.
(B) The portion of a defendant’s sentenced term that is suspended pursuant to this paragraph shall be known as mandatory supervision, and, unless otherwise ordered by the court, shall commence upon release from physical custody or an alternative custody
program, whichever is later. During the period of mandatory supervision, 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, probation for the remaining unserved portion of the sentence imposed by the court. The period of supervision shall be mandatory, mandatory and may not be earlier terminated
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 that 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 that is suspended because a person has absconded shall not be credited toward the period of supervision.
(6) When the court is imposing a judgment pursuant
to this subdivision concurrent or consecutive to a judgment or judgments previously imposed pursuant to this subdivision in another county or counties, the court rendering the second or other subsequent judgment shall determine the county or counties of incarceration and supervision of the defendant.
(7) 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.
(8) The sentencing changes made to paragraph (5) by the act that added this paragraph shall become effective and operative on January 1, 2015, and shall be applied prospectively to any person sentenced on or after January 1, 2015.
(9) Notwithstanding the separate
punishment for any enhancement, any enhancement shall be punishable in county jail or state prison as required by the underlying offense and not as would be required by the enhancement. The intent of the Legislature in enacting this paragraph is to abrogate the holding in People v. Vega (2014) 222 Cal.App.4th 1374, that if an enhancement specifies service of sentence in state prison, the entire sentence is served in state prison, even if the punishment for the underlying offense is a term of imprisonment in the county jail.
SEC. 7.
Section 1170.1 of the Penal Code is amended to read:1170.1.
(a) Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. Whenever a court imposes a term of imprisonment in the state prison, whether the term is a principal or subordinate term, the aggregate term shall be served in the state prison, regardless as to whether or not one of the terms specifies imprisonment in a county jail pursuant to subdivision (h) of Section 1170.(b) If a person is convicted of two or more violations of kidnapping, as defined in Section 207, involving separate victims, the subordinate term for each consecutive offense of
kidnapping shall consist of the full middle term and shall include the full term imposed for specific enhancements applicable to those subordinate offenses.
(c) In the case of any person convicted of one or more felonies committed while the person is confined in the state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a). This subdivision shall be applicable in cases of convictions of more than
one offense in the same or different proceedings.
(d) (1) When the court imposes a sentence for a felony pursuant to Section 1170 or subdivision (b) of Section 1168, the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three terms, the court shall, in its sound discretion, order imposition of a sentence not to exceed the middle term, except as otherwise provided in paragraph (2).
(2) The court may impose a sentence exceeding the middle term only when there are circumstances in aggravation that justify the imposition of a term of imprisonment exceeding the middle term, and the facts underlying those
circumstances have been stipulated to by the defendant, or have been found true beyond a reasonable doubt at trial by the jury or by the judge in a court trial.
(3) The court shall also impose any other additional term that the court determines in its discretion or as required by law shall run consecutive to the term imposed under Section 1170 or subdivision (b) of Section 1168. In considering the imposition of the additional term, the court shall apply the sentencing rules of the Judicial Council.
(e) All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury.
(g) When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm.
(h) For any violation
of an offense specified in Section 667.6, the number of enhancements that may be imposed shall not be limited, regardless of whether the enhancements are pursuant to this section, Section 667.6, or some other provision of law. Each of the enhancements shall be a full and separately served term.
(i) Except as otherwise required by law, unless contrary to the interests of justice, the court shall not impose consecutive terms of imprisonment for two or more felonies if any of the following was a contributing factor in the commission of the offense:
(1) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(2) The person is a youth,
or was a youth as defined under subdivision (m) of Section 1203 subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(3) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
(j) Except as otherwise required by law, unless contrary to the interest of justice, the court shall not impose a term of imprisonment for any enhancement that is found true within the meaning of subdivision (g) if any of the following was a contributing factor in the commission of the alleged offense:
(1) The person has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence.
(2) The person is a youth, or was a youth as defined under subdivision (m) of Section 1203 subdivision (b) of Section 1016.7 at the time of the commission of the offense.
(3) Prior to the instant offense, or at the time of the commission of the offense, the person is or was a victim of intimate partner violence or human trafficking.
