Bill Text: CA AB88 | 2023-2024 | Regular Session | Chaptered
Bill Title: Criminal procedure: victims’ rights.
Spectrum: Slight Partisan Bill (Republican 3-1)
Status: (Passed) 2023-10-13 - Chaptered by Secretary of State - Chapter 795, Statutes of 2023. [AB88 Detail]
Download: California-2023-AB88-Chaptered.html
Assembly Bill
No. 88
CHAPTER 795
An act to amend Sections 1172.1 and 3043 of the Penal Code, relating to crime victims.
[
Approved by
Governor
October 13, 2023.
Filed with
Secretary of State
October 13, 2023.
]
LEGISLATIVE COUNSEL'S DIGEST
AB 88, Sanchez.
Criminal procedure: victims’ rights.
Existing law authorizes a court, under specified circumstances, to resentence a defendant convicted of a felony offense. Under existing law, resentencing can be granted without a hearing upon stipulation of the parties.
This bill would require a victim of the crime who wishes to be heard regarding the resentencing to notify the prosecution of their request for a hearing within 15 days of being notified that resentencing is being sought, and would require the court to provide an opportunity for the victim to be heard.
Existing law requires any person, except the victim, who is entitled to attend a parole hearing and intends to do so, to provide at least 30 days’ notice to the Board of Parole Hearings. Existing regulations of the Department of Corrections and Rehabilitation require victims, the victim’s
next of kin, members of the victim’s family, victim representatives, counsel for any of these persons, and victim support persons to give notice of their intention to attend, to the department, as specified.
This bill would limit the amount of notice that the department may require from any of these persons to no more than 15 days.
This bill would incorporate additional changes to Section 1172.1 of the Penal Code proposed by AB 600 to be operative only if this bill and AB 600 are enacted and this bill is enacted last.
Digest Key
Vote: MAJORITY Appropriation: NO Fiscal Committee: YES Local Program: NOBill Text
The people of the State of California do enact as follows:
SECTION 1.
Section 1172.1 of the Penal Code is amended to read:1172.1.
(a) (1) When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation or to the custody of the county correctional administrator pursuant to subdivision (h) of Section 1170, the court may, within 120 days of the date of commitment on its own motion, at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence.(2) The court, in recalling and resentencing under this subdivision, shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(3) The resentencing court may, in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following:
(A) Reduce a defendant’s term of imprisonment by modifying the sentence.
(B) Vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in the original pleading, and then resentence the defendant to a reduced term of imprisonment, with the concurrence of both the defendant and the district attorney of the county in which the defendant was sentenced or the Attorney General if the Department of Justice originally prosecuted the case.
(4) In recalling and resentencing pursuant to this provision, the court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated,
evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. The court shall consider if the defendant has experienced psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, if the defendant was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense, or if the defendant is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense, and whether those circumstances were a contributing factor in the commission of the offense.
(5) Credit shall be given for time served.
(6) The court shall state on the record the reasons for its decision to grant or deny recall and resentencing.
(7) (A) Resentencing may be granted without a hearing upon stipulation by the parties.
(B) Notwithstanding subparagraph (A), if a victim of a crime wishes to be heard pursuant to the provisions of Section 28 of Article I of the California Constitution, or pursuant to any other provision of law applicable to the hearing, the victim shall notify the prosecution of their request to be heard within 15 days of being notified that resentencing is being sought and the court shall provide an opportunity for the victim to be heard.
(8) Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection. If a hearing is held, the defendant may appear remotely and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court.
(b) If a resentencing request pursuant to subdivision (a) is from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, a county correctional administrator, a district attorney, or the Attorney General, all of the following shall apply:
(1) The court shall provide notice to the defendant and set a status
conference within 30 days after the date that the court received the request. The court’s order setting the conference shall also appoint counsel to represent the defendant.
(2) There shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18.
SEC. 1.5.
Section 1172.1 of the Penal Code is amended to read:1172.1.
(a) (1) When a defendant, upon conviction for a felony offense, has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation or to the custody of the county correctional administrator pursuant to subdivision (h) of Section 1170, the court may, on its own motion, within 120 days of the date of commitment or at any time if the applicable sentencing laws at the time of original sentencing are subsequently changed by new statutory authority or case law, at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of a defendant incarcerated in state prison, the county correctional administrator in the case of a defendant incarcerated in county jail, the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if they had not previously been sentenced, whether or not the defendant is still in custody, and provided the new sentence, if any, is no greater than the initial sentence. Recall and resentencing under this section may be initiated by the original sentencing judge, a judge designated by the presiding judge, or any judge with jurisdiction in the case.(2) The court, in recalling and resentencing under this subdivision, shall apply the sentencing rules of the Judicial Council and apply any changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.
(3) The resentencing court may, in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following:
(A) Reduce a defendant’s term of imprisonment by modifying the sentence.
(B) Vacate the defendant’s conviction and impose judgment on any necessarily included lesser offense or lesser related offense, whether or not that offense was charged in
the original pleading, with the concurrence of the defendant, and then resentence the defendant to a reduced term of
imprisonment.
(4) If the court has recalled the sentence on its own motion, the court shall not impose a judgment on any necessarily included lesser offense or lesser related offense if the conviction was a result of a plea bargain without the concurrence of both the defendant and the district attorney of the county in which the defendant was sentenced, or the Attorney General if the Department of Justice originally prosecuted the case.
(5) In recalling and resentencing pursuant to this provision, the court
shall consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice. Evidence that the defendant’s incarceration is no longer in the interest of justice includes, but is not limited to, evidence that the defendant’s constitutional rights were violated in the proceedings related to the conviction or sentence at issue, and any other evidence that undermines the integrity of the underlying conviction or sentence. The court shall consider if the defendant has experienced
psychological, physical, or childhood trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence, if the defendant was a victim of intimate partner violence or human trafficking prior to or at the time of the commission of the offense, or if the defendant is a youth or was a youth as defined under subdivision (b) of Section 1016.7 at the time of the commission of the offense, and whether those circumstances were a contributing factor in the commission of the offense.
(6) Credit shall be given for time served.
(7) The court shall state on the record the reasons for its decision to grant or deny recall and resentencing.
(8) (A) Resentencing may be granted without a hearing upon stipulation by the parties.
(B) Notwithstanding subparagraph
(A), if a victim of a crime wishes to be heard pursuant to the provisions of Section 28 of Article I of the California Constitution, or pursuant to any other provision of law applicable to the hearing, the victim shall notify the prosecution of their request to be heard within 15 days of being notified that resentencing is being sought and the court shall provide an opportunity for the victim to be heard.
(9) Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection. If a hearing is held, the defendant may appear remotely and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court.
(b) If a resentencing request pursuant to subdivision (a) is from the Secretary of the Department of Corrections and Rehabilitation, the Board of Parole Hearings, a county correctional administrator, a district attorney, or the Attorney General,
all of the following shall apply:
(1) The court shall provide notice to the defendant and set a status conference within 30 days after the date that the court received the request. The court’s order setting the conference shall also appoint counsel to represent the defendant.
(2) There shall be a presumption favoring recall and resentencing of the defendant, which may only be overcome if a court finds the defendant
currently poses an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18.
(c) A defendant is not entitled to file a petition seeking relief from the court under this section. If a defendant requests consideration for relief under this section, the court is not required to respond.
(d) After ruling on a referral authorized by this section, the court shall advise the defendant of their right to appeal and the necessary steps and time for taking an appeal.
SEC. 2.
Section 3043 of the Penal Code is amended to read:3043.
(a) (1) Upon request to the Department of Corrections and Rehabilitation and verification of the identity of the requester, notice of any hearing to review or consider the parole suitability for any inmate in a state prison shall be given by telephone, certified mail, regular mail, or electronic mail, using the method of communication selected by the requesting party, if that method is available, by the Board of Parole Hearings at least 90 days before the hearing to any victim of any crime committed by the inmate, or to the next of kin of the victim if the victim has died, to include the commitment crimes, determinate term commitment crimes for which the inmate has been paroled, and any other felony crimes or crimes against the person for which the inmate has been convicted. The requesting party shall keep the board apprised of their current contact information in order to receive the notice.(2) No later than 30 days before the date selected for the hearing, any person entitled to attend the hearing, other than the victim, victim’s next of kin, member of the victim’s family, victim’s representative, counsel representing any of these persons, or victim support persons, shall inform the board of their intention to attend the hearing and the name and identifying information of any other person entitled to attend the hearing who will accompany them.
(3) No later than 14 days before the date selected for the hearing, the board shall notify every person entitled to attend the hearing confirming the date, time, and place of the hearing.
(4) The department and the board may require no more than 15 days’ notice by a victim, victim’s next of kin, member of the victim’s family, victim’s representative, counsel representing any of these persons, or victim support persons, of their intention to attend the hearing.
(b) (1) The victim, next of kin, members of the victim’s family, and two representatives designated as provided in paragraph (2) of this subdivision have the right to appear, personally or by counsel, at the hearing and to adequately and reasonably express their views concerning the inmate and the case, including, but not limited to the commitment crimes, determinate term commitment crimes for which the inmate has been paroled, any other felony crimes or crimes against the person for which the inmate has been convicted, the effect of the
enumerated crimes on the victim and the family of the victim, the person responsible for these enumerated crimes, and the suitability of the inmate for parole.
(2) Any statement provided by a representative designated by the victim or next of kin may cover any subject about which the victim or next of kin has the right to be heard including any recommendation regarding the granting of parole. The representatives shall be designated by the victim or, in the event that the victim is deceased or incapacitated, by the next of kin. They shall be designated in writing for the particular hearing before the hearing.
(c) A representative designated by the victim or the victim’s next of kin for purposes of this section may be any adult person selected by the victim or the family
of the victim. The board shall permit a representative designated by the victim or the victim’s next of kin to attend a particular hearing, to provide testimony at a hearing, and to submit a statement to be included in the hearing as provided in Section 3043.2, even though the victim, next of kin, or a member of the victim’s immediate family is present at the hearing, and even though the victim, next of kin, or a member of the victim’s immediate family has submitted a statement as described in Section 3043.2.
(d) The board, in deciding whether to release the person on parole, shall consider the entire and uninterrupted statements of the victim or victims, next of kin, immediate family members of the victim, and the designated representatives of the victim or next of kin, if applicable, made pursuant to this section and shall include in
its report a statement whether the person would pose a threat to public safety if released on parole.
(e) In those cases where there are more than two immediate family members of the victim who wish to attend any hearing covered in this section, the board shall allow attendance of additional immediate family members to include the following: spouse, children, parents, siblings, grandchildren, and grandparents.
