Bill Text: CA AB2205 | 2015-2016 | Regular Session | Amended
Bill Title: Supervised persons: credits.
Spectrum: Partisan Bill (Democrat 1-0)
Status: (Failed) 2016-04-13 - From committee: Without further action pursuant to Joint Rule 62(a). [AB2205 Detail]
Download: California-2015-AB2205-Amended.html
BILL NUMBER: AB 2205 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MARCH 30, 2016
AMENDED IN ASSEMBLY MARCH 28, 2016
INTRODUCED BY Assembly Member Dodd
FEBRUARY 18, 2016
An act to amend Sections 1170, 1203.2, and 3456 of the Penal Code,
relating to supervised persons.
LEGISLATIVE COUNSEL'S DIGEST
AB 2205, as amended, Dodd. Supervised persons: credits.
Existing law, until January 1, 2017, requires that when a statute
imposes 3 possible terms of imprisonment, the choice of the
appropriate term to impose is within the court's discretion. Existing
law authorizes a court, when sentencing a person to county jail for
a felony, to commit the person to county jail for either the full
term in custody, as specified, or to suspend the execution of a
concluding portion of the term selected at the court's discretion.
Under existing law, this period of suspended execution is supervised
by the county probation officer and is known as mandatory
supervision. Existing law prohibits any time period which is
suspended because a person has absconded from being credited toward
the period of supervision.
This bill would extend the operation of the sentencing
term provisions described above until January 1, 2020. This bill
would revise those provisions to prohibit the period of
time during any revocation, summary or otherwise, of mandatory
supervision from bring credited toward any period of supervision,
and would provide that a person not remain in custody for
a period longer than the term of supervision. The bill would also
provide that the period of the stay of the sentence would not extend
beyond 5 years from the date of the last summary revocation of
supervision, subject to exception, and in no event would the stay be
extended beyond 10 years from the date of the last summary revocation
of supervision.
Existing law allows a probation officer, parole officer, or peace
officer to arrest a person without warrant or other process during
the period that a person is released on probation, conditional
sentence or summary probation, or mandatory supervision, or when the
person is subject to revocation of postrelease community supervision
or parole supervision, if the officer has probable cause to believe
that the supervised person is violating the terms of his or her
supervision. Under existing law, the revocation of supervision,
summary or otherwise, serves to toll the running of the period of
supervision.
This bill would instead prohibit the period of time during any
revocation, summary or otherwise, from being credited toward any
period of supervision. The bill would also provide that the period of
the stay of the sentence would not extend beyond 5 years from the
date of the last summary revocation of supervision, subject to
exception, and in no event would the stay be extended beyond 10 years
from the date of the last summary revocation of supervision.
Existing law requires a county agency responsible for postrelease
supervision to maintain postrelease supervision over a person subject
to that supervision until one of several specified events occurs.
Existing law prohibits the time during which a person on postrelease
supervision is suspended because the person has absconded from being
credited toward any period of postrelease supervision.
This bill would revise that prohibition to prohibit the period of
time during any revocation, summary or otherwise, from being credited
toward any period of supervision, provided however, that the person
subject to postrelease supervision would not remain in custody for a
period longer than the authorized term of supervision. The bill would
also provide that the period of the stay of the sentence would not
extend beyond 5 years from the date of the last summary revocation of
supervision, subject to exception, and in no event would the stay be
extended beyond 10 years from the date of the last summary
revocation of supervision. The bill would make additional technical,
nonsubstantive changes to those provisions.
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, as amended by Section 1
of Chapter 378 of the Statutes of 2015, 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 is best achieved by determinate
sentences fixed by statute in proportion to the seriousness of the
offense as determined by the Legislature to be imposed by the court
with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In a 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 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 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 a law that imposes the death penalty, that
authorizes or restricts the granting of probation or suspending the
execution or imposition of sentence, or expressly provides for
imprisonment in the state prison for life, except as provided in
paragraph (2) of subdivision (d). In a case in which the amount of
preimprisonment credit under Section 2900.5 or any other law is equal
to or exceeds a sentence imposed pursuant to this chapter, except
for the remaining portion of mandatory supervision 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 to the
custody of the county correctional administrator. The court shall
advise the defendant that he or she 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) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term that, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of an
enhancement upon which sentence is imposed under any 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
or 3000.08 or postrelease community supervision for a period as
provided in Section 3451.
(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the state
prison or county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county correctional
administrator, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings in the case of state
prison inmates, or the county correctional administrator in the case
of county jail inmates, recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as
if he or she had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence. The court
resentencing under this subdivision shall apply the sentencing rules
of the Judicial Council so as to eliminate disparity of sentences and
to promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) (i) When a defendant who was under 18 years of age at the
time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
a defendant sentenced to life without parole for an offense where
the defendant tortured, as described in Section 206, his or her
victim, or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
(E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain
their rights to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
(v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
(G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(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.
(C) (i) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, or
loss of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
(ii) The Board of Parole Hearings 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
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) A physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provision of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) A recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has in his or her
possession, a discharge medical summary, full medical records, state
identification, parole or postrelease community supervision
medications, and all property belonging to the prisoner. After
discharge, any additional records shall be sent to the prisoner's
forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that a prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(11) The provisions of this subdivision shall be available to an
inmate who is sentenced to a county jail pursuant to subdivision (h).
For purposes of those inmates, "secretary" or "warden" shall mean
the county correctional administrator and "chief medical officer"
shall mean a physician designated by the county correctional
administrator for this purpose.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), an allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (A) Unless the court finds that, in the interests of justice,
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, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. A 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. The period of
time during any revocation, summary or otherwise, shall not be
credited toward any period of supervision, provided, however, that
the defendant shall not remain in custody for a period longer than
the term of supervision authorized under this section and that the
period of the stay shall not extend beyond five years from the date
of the last summary revocation of supervision unless the court finds,
based on the seriousness of the defendant's current conviction or
the defendant's past criminal record, that it would be in the
interests of justice to further extend the stay. In no event shall
the stay be extended beyond 10 years from the date of the last
summary revocation of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to a person sentenced on
or after October 1, 2011.
(7) 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 a person sentenced on
or after January 1, 2015.
(i) This section shall remain in effect only until January 1,
2020, 2017, and as of that date is
repealed, unless a later enacted statute, that is enacted before that
date, deletes or extends that date.
SEC. 2. Section 1170 of the Penal Code, as amended by Section 2 of
Chapter 378 of the Statutes of 2015, 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 is best achieved by determinate
sentences fixed by statute in proportion to the seriousness of the
offense as determined by the Legislature to be imposed by the court
with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In a 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, 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 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 a law that imposes the death penalty, that
authorizes or restricts the granting of probation or suspending the
execution or imposition of sentence, or expressly provides for
imprisonment in the state prison for life, except as provided in
paragraph (2) of subdivision (d). In a case in which the amount of
preimprisonment credit under Section 2900.5 or any other provision of
law is equal to or exceeds a 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 he or she
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) 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 an enhancement upon which
sentence is imposed under any 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
or 3000.08 or postrelease community supervision for a period as
provided in Section 3451.
(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the state
prison or county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county correctional
administrator, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings in the case of state
prison inmates, or the county correctional administrator in the case
of county jail inmates, recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as
if he or she had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence. The court
resentencing under this subdivision shall apply the sentencing rules
of the Judicial Council so as to eliminate disparity of sentences and
to promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) (i) When a defendant who was under 18 years of age at the
time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
a defendant sentenced to life without parole for an offense where
the defendant tortured, as described in Section 206, his or her
victim, or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
(E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain
their rights to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
(v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
(G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(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.
(C) (i) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, or
loss of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
(ii) The Board of Parole Hearings 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
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) A physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provision of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) A recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has in his or her
possession, a discharge medical summary, full medical records, state
identification, parole or postrelease community supervision
medications, and all property belonging to the prisoner. After
discharge, any additional records shall be sent to the prisoner's
forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that a prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(11) The provisions of this subdivision shall be available to an
inmate who is sentenced to a county jail pursuant to subdivision (h).
For purposes of those inmates, "secretary" or "warden" shall mean
the county correctional administrator and "chief medical officer"
shall mean a physician designated by the county correctional
administrator for this purpose.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), an allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (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, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. A 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. The period of
time during any revocation, summary or otherwise, shall not be
credited toward any period of supervision, provided, however, that
the defendant shall not remain in custody for a period longer than
the term of supervision authorized under this section and that the
period of the stay shall not extend beyond five years from the date
of the last summary revocation of supervision unless the court finds,
based on the seriousness of the defendant's current conviction or
the defendant's past criminal record, that it would be in the
interests of justice to further extend the stay. In no event shall
the stay be extended beyond 10 years from the date of the last
summary revocation of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to a person sentenced on
or after October 1, 2011.
(7) 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 a person sentenced on
or after January 1, 2015.
(i) This section shall become operative on January 1,
2020. 2017.
SEC. 3. Section 1203.2 of the Penal Code is amended to read:
1203.2. (a) At any time during the period of supervision of a
person (1) released on probation under the care of a probation
officer pursuant to this chapter, (2) released on conditional
sentence or summary probation not under the care of a probation
officer, (3) placed on mandatory supervision pursuant to subparagraph
(B) of paragraph (5) of subdivision (h) of Section 1170, (4) subject
to revocation of postrelease community supervision pursuant to
Section 3455, or (5) subject to revocation of parole supervision
pursuant to Section 3000.08, if any probation officer, parole
officer, or peace officer has probable cause to believe that the
supervised person is violating any term or condition of his or her
supervision, the officer may, without warrant or other process and at
any time until the final disposition of the case, rearrest the
supervised person and bring him or her before the court or the court
may, in its discretion, issue a warrant for his or her rearrest.
Notwithstanding Section 3056, and unless the supervised person is
otherwise serving a period of flash incarceration, whenever a
supervised person who is subject to this section is arrested, with or
without a warrant or the filing of a petition for revocation as
described in subdivision (b), the court may order the release of a
supervised person from custody under any terms and conditions the
court deems appropriate. Upon rearrest, or upon the issuance of a
warrant for rearrest, the court may revoke and terminate the
supervision of the person if the interests of justice so require and
the court, in its judgment, has reason to believe from the report of
the probation or parole officer or otherwise that the person has
violated any of the conditions of his or her supervision, has become
abandoned to improper associates or a vicious life, or has
subsequently committed other offenses, regardless of whether he or
she has been prosecuted for those offenses. However, the court shall
not terminate parole pursuant to this section. Supervision shall not
be revoked for failure of a person to make restitution imposed as a
condition of supervision unless the court determines that the
defendant has willfully failed to pay and has the ability to pay.
Restitution shall be consistent with a person's ability to pay. The
period of time during any revocation, summary or otherwise, shall not
be credited toward any period of supervision, provided, however,
that the period of the stay shall not extend beyond five years from
the date of the last summary revocation of supervision unless the
court finds, based on the seriousness of the defendant's current
conviction or the defendant's past criminal record, that it would be
in the interests of justice to further extend the stay. In no event
shall the stay be extended beyond 10 years from the date of the last
summary revocation of supervision.
(b) (1) Upon its own motion or upon the petition of the supervised
person, the probation or parole officer, or the district attorney,
the court may modify, revoke, or terminate supervision of the person
pursuant to this subdivision, except that the court shall not
terminate parole pursuant to this section. The court in the county in
which the person is supervised has jurisdiction to hear the motion
or petition, or for those on parole, either the court in the county
of supervision or the court in the county in which the alleged
violation of supervision occurred. A person supervised on parole or
postrelease community supervision pursuant to Section 3455 may not
petition the court pursuant to this section for early release from
supervision, and a petition under this section shall not be filed
solely for the purpose of modifying parole. This section does not
prohibit the court in the county in which the person is supervised or
in which the alleged violation of supervision occurred from
modifying a person's parole when acting on the court's own motion or
a petition to revoke parole. The court shall give notice of its
motion, and the probation or parole officer or the district attorney
shall give notice of his or her petition to the supervised person,
his or her attorney of record, and the district attorney or the
probation or parole officer, as the case may be. The supervised
person shall give notice of his or her petition to the probation or
parole officer and notice of any motion or petition shall be given to
the district attorney in all cases. The court shall refer its motion
or the petition to the probation or parole officer. After the
receipt of a written report from the probation or parole officer, the
court shall read and consider the report and either its motion or
the petition and may modify, revoke, or terminate the supervision of
the supervised person upon the grounds set forth in subdivision (a)
if the interests of justice so require.
(2) The notice required by this subdivision may be given to the
supervised person upon his or her first court appearance in the
proceeding. Upon the agreement by the supervised person in writing to
the specific terms of a modification or termination of a specific
term of supervision, any requirement that the supervised person make
a personal appearance in court for the purpose of a modification or
termination shall be waived. Prior to the modification or termination
and waiver of appearance, the supervised person shall be informed of
his or her right to consult with counsel, and if indigent the right
to secure court appointed counsel. If the supervised person waives
his or her right to counsel a written waiver shall be required. If
the supervised person consults with counsel and thereafter agrees to
a modification, revocation, or termination of the term of supervision
and waiver of personal appearance, the agreement shall be signed by
counsel showing approval for the modification or termination and
waiver.
(c) Upon any revocation and termination of probation the court
may, if the sentence has been suspended, pronounce judgment for any
time within the longest period for which the person might have been
sentenced. However, if the judgment has been pronounced and the
execution thereof has been suspended, the court may revoke the
suspension and order that the judgment shall be in full force and
effect. In either case, the person shall be delivered over to the
proper officer to serve his or her sentence, less any credits herein
provided for.
(d) In any case of revocation and termination of probation,
including, but not limited to, cases in which the judgment has been
pronounced and the execution
thereof has been suspended, upon the revocation and
termination, the court may, in lieu of any other sentence, commit the
person to the Department of Corrections and Rehabilitation, Division
of Juvenile Facilities if he or she is otherwise eligible for that
commitment.
(e) If probation has been revoked before the judgment has been
pronounced, the order revoking probation may be set aside for good
cause upon motion made before pronouncement of judgment. If probation
has been revoked after the judgment has been pronounced, the
judgment and the order which revoked the probation may be set aside
for good cause within 30 days after the court has notice that the
execution of the sentence has commenced. If an order setting aside
the judgment, the revocation of probation, or both is made after the
expiration of the probationary period, the court may again place the
person on probation for that period and with those terms and
conditions as it could have done immediately following conviction.
(f) As used in this section, the following definitions shall
apply:
(1) "Court" means a judge, magistrate, or revocation hearing
officer described in Section 71622.5 of the Government Code.
(2) "Probation officer" means a probation officer as described in
Section 1203 or an officer of the agency designated by the board of
supervisors of a county to implement postrelease community
supervision pursuant to Section 3451.
(3) "Supervised person" means a person who satisfies any of the
following:
(A) He or she is released on probation subject to the supervision
of a probation officer.
(B) He or she is released on conditional sentence or summary
probation not under the care of a probation officer.
(C) He or she is subject to mandatory supervision pursuant to
subparagraph (B) of paragraph (5) of subdivision (h) of Section 1170.
(D) He or she is subject to revocation of postrelease community
supervision pursuant to Section 3455.
(E) He or she is subject to revocation of parole pursuant to
Section 3000.08.
(g) This section does not affect the authority of the supervising
agency to impose intermediate sanctions, including flash
incarceration, to persons supervised on parole pursuant to Section
3000.8 or postrelease community supervision pursuant to Part 3
(commencing with Section 3450) of Title 2.05.
SEC. 4. Section 3456 of the Penal Code is amended to read:
3456. (a) The county agency responsible for postrelease
supervision, as established by the county board of supervisors
pursuant to subdivision (a) of Section 3451, shall maintain
postrelease supervision over a person under postrelease supervision
pursuant to this title until one of the following events occurs:
(1) The person has been subject to postrelease supervision
pursuant to this title for three years at which time the offender
shall be immediately discharged from postrelease supervision.
(2) The person who has been on postrelease supervision
continuously for one year with no violations of his or her conditions
of postrelease supervision that result in a custodial sanction shall
be discharged from supervision within 30 days.
(3) Jurisdiction over the person has been terminated by operation
of law.
(4) Jurisdiction is transferred to another supervising county
agency.
(5) Jurisdiction is terminated by the revocation hearing officer
upon a petition to revoke and terminate supervision by the
supervising county agency.
(b) A person on postrelease supervision for six consecutive months
with no violations of his or her conditions of postrelease
supervision that result in a custodial sanction may be considered for
immediate discharge by the supervising county.
(c) The period of time during any revocation, summary or
otherwise, shall not be credited toward any period of supervision,
provided, however, that the person subject to postrelease supervision
shall not remain in custody for a period longer than the term of
supervision authorized under this section and that the period of the
stay shall not extend beyond five years from the date of the last
summary revocation of supervision unless the court finds, based on
the seriousness of the defendant's current conviction or the
defendant's past criminal record, that it would be in the interests
of justice to further extend the stay. In no event shall the stay be
extended beyond 10 years from the date of the last summary revocation
of supervision.
