BILL NUMBER: SB 399 AMENDED
BILL TEXT
AMENDED IN SENATE MAY 5, 2009
AMENDED IN SENATE APRIL 29, 2009
AMENDED IN SENATE APRIL 28, 2009
INTRODUCED BY Senator Yee
(Principal coauthor: Senator Romero)
(Coauthor: Senator Steinberg)
FEBRUARY 26, 2009
An act to amend Section 1170 of the Penal Code, relating to
sentencing.
LEGISLATIVE COUNSEL'S DIGEST
SB 399, as amended, Yee. Sentencing.
Existing law provides that the Secretary of the Department of
Corrections and Rehabilitation or the Board of Parole Hearings or
both may, for specified reasons, recommend to the court that a
prisoner's sentence be recalled, and that a court may recall a
prisoner's sentence.
This bill would establish criteria to be used by the
secretary or the board for determining if a prisoner's sentence
should be recommended for recall and resentencing when the
authorize a prisoner who was under 18 years of
age at the time of committing an offense for which the prisoner was
sentenced to life without parole to submit a petition for recall
and resentencing to the sentencing court, as specified. The bill
would establish certain criteria to be considered when a court
decides whether to conduct a hearing on the petition for recall and
resentencing and whether to grant the petition. The bill would
require the court to make findings within 90 days of submission of
the petition, and to hold a hearing if the court finds that the
criteria are met, as specified . The bill would apply
retroactively, as specified.
Vote: majority. Appropriation: no. Fiscal committee: yes.
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 416 of the Statutes of 2008, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) 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 any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life, except as provided in subdivision (e). In any case
in which the amount of preimprisonment credit under Section 2900.5 or
any other provision of law is equal to or exceeds any sentence
imposed pursuant to this chapter, the entire sentence shall be deemed
to have been served and the defendant shall not be actually
delivered to the custody of the secretary. The court shall advise the
defendant that he or she shall serve a period of parole and order
the defendant to report to the parole office closest to the defendant'
s last legal residence, unless the in-custody credits equal the total
sentence, including both confinement time and the period of parole.
The sentence shall be deemed a separate prior prison term under
Section 667.5, and a copy of the judgment and other necessary
documentation shall be forwarded to the 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 which, 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 any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, 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, 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.
(e) (1) 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 committed to the custody of the Department of
Corrections and Rehabilitation, the secretary of the department or
the Board of Parole Hearings shall review the case no later than 90
days before the time that the defendant has served 10 years to
determine if the defendant satisfies three or more of the criteria
set forth in paragraph (2). Defendants who have served 15 or more
years but less than 25 years as of January 1, 2010, shall be reviewed
so that at least 20 defendants have their initial review each year
until all of those who have served more than 15 years but less than
25 years are reviewed, starting with those who have served the
longest time. Those who have served less than 15 years as of January
1, 2010, shall have their initial reviews as otherwise set forth in
this section. The secretary or the board shall consider any
documentation relevant to that determination, including documentation
presented by the defendant, and shall issue written findings not
later than 90 days after the date of review. has
served at least 10 years of that sentence, the defendant may submit
to the sentencing court a petition for recall and resentencing. The
court shall consider the petition and shall issue written findings
not later than 90 days after the submission of the petition.
Defendants who have served 15 or more years but less than 25 years as
of January 1, 2010, shall be permitted to submit a
petition for recall and resentencing as follows:
(A) Those defendants who entered custody prior to July 1, 1993,
may submit a petition in 2010.
(B) Those defendants who entered custody on or after July 1, 1993,
but prior to January 1, 1994, may submit a petition in 2011.
(C) Those defendants who entered custody on or after January 1,
1994, but prior to July 1, 1994, may submit a petition in 2012.
(D) Those defendants who entered custody on or after July 1, 1994,
but prior to January 1, 1995, may submit a petition in 2013.
(2) If the secretary or the board court
finds, based on a preponderance of the evidence, that the
defendant satisfies three or more of the following criteria,
that finding shall be forwarded to the sentencing the
court, which shall conduct a hearing as
specified in paragraph (3):
(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) 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.
(E) 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.
(F) 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 taking action that demonstrates
the presence of remorse.
(G) 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.
(H) The defendant has had no violent disciplinary violations in
the last five years in which the defendant was determined to be the
aggressor.
(3) 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 paragraph (2). 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.
(4) If the sentence is not recalled, the board shall make
the determination mandated by subdivision (a) again
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 15 years, 20 years, and
at least 15 years. If recall and resentencing is not
granted under that petition, the defendant may file
another petition after having served 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
review shall be petition may be submitted,
and the response to that petition shall be determined, during
the 24th 25th year of the defendant's
sentence.
(5) In addition to the criteria in paragraph (2), 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.
(6) This subdivision shall have retroactive application.
(f) (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 subparagraph (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) 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, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
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) Any 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 provisions 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) Any 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 each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole 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 any 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.
(g) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(h) 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.
(i) This section shall remain in effect only until January 1,
2011, 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 416 of the Statutes of 2008, is amended to read:
1170. (a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) 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 any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison of any specification of three time periods, the
court shall sentence the defendant to one of the terms of
imprisonment specified unless the convicted person is given any other
disposition provided by law, including a fine, jail, probation, or
the suspension of imposition or execution of sentence or is sentenced
pursuant to subdivision (b) of Section 1168 because he or she had
committed his or her crime prior to July 1, 1977. In sentencing the
convicted person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there are
circumstances in mitigation of the punishment prescribed, shall also
impose any other term that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that authorizes or restricts
the granting of probation or suspending the execution or imposition
of sentence, or expressly provides for imprisonment in the state
prison for life, except as provided in subdivision (e). In any case
in which the amount of preimprisonment credit under Section 2900.5 or
any other provision of law is equal to or exceeds any sentence
imposed pursuant to this chapter, the entire sentence shall be deemed
to have been served and the defendant shall not be actually
delivered to the custody of the secretary. The court shall advise the
defendant that he or she shall serve a period of parole and order
the defendant to report to the parole office closest to the defendant'
s last legal residence, unless the in-custody credits equal the total
sentence, including both confinement time and the period of parole.
The sentence shall be deemed a separate prior prison term under
Section 667.5, and a copy of the judgment and other necessary
documentation shall be forwarded to the 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 any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000.
(d) When a defendant subject to this section or subdivision (b) of
Section 1168 has been sentenced to be imprisoned in the state prison
and has been committed to the custody of the secretary, 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, 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.
(e) (1) 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 committed to the custody of the Department of
Corrections and Rehabilitation, the secretary of the department or
the Board of Parole Hearings shall review the case no later than 90
days before the time that the defendant has served 10 years to
determine if the defendant satisfies three or more of the criteria
set forth in paragraph (2). Defendants who have served 15 or more
years but less than 25 years as of January 1, 2010, shall be reviewed
so that at least 20 defendants have their initial review each year
until all of those who have served more than 15 years but less than
25 years are reviewed, starting with those who have served the
longest time. Those who have served less than 15 years as of January
1, 2010, shall have their initial reviews as otherwise set forth in
this section. The secretary or the board shall consider any
documentation relevant to that determination, including documentation
presented by the defendant, and shall issue written findings not
later than 90 days after the date of review. has
served at least 10 years of that sentence, the defendant may submit
to the sentencing court a petition for recall and resentencing. The
court shall consider the petition and shall issue written findings
not later than 90 days after the submission of the petition.
Defendants who have served 15 or more years but less than 25 years as
of January 1, 2010, shall be permitted to submit a
petition for recall and resentencing as follows:
(A) Those defendants who entered custody prior to July 1, 1993,
may submit a petition in 2010.
(B) Those defendants who entered custody on or after July 1, 1993,
but prior to January 1, 1994, may submit a petition in 2011.
(C) Those defendants who entered custody on or after January 1,
1994, but prior to July 1, 1994, may submit a petition in 2012.
(D) Those defendants who entered custody on or after July 1, 1994,
but prior to January 1, 1995, may submit a petition in 2013.
(2) If the secretary or the board court
finds, based on a preponderance of the evidence, that the
defendant satisfies three or more of the following criteria,
that finding shall be forwarded to the sentencing the
court , which shall conduct a hearing as
specified in paragraph (3):
(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) 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.
(E) 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.
(F) 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 taking action that demonstrates
the presence of remorse.
(G) 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.
(H) The defendant has had no violent disciplinary violations in
the last five years in which the defendant was determined to be the
aggressor.
(3) 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 paragraph (2). 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.
(4) If the sentence is not recalled, the board shall make
the determination mandated by subdivision (a) again
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 15 years, 20 years, and
at least 15 years. If recall and resentencing is not
granted under that petition, the defendant may file
another petition after having served 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
review shall be petition may be submitted,
and the response to that petition shall be determined, during
the 24th 25th year of the defendant's
sentence.
(5) In addition to the criteria in paragraph (2), 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.
(6) This subdivision shall have retroactive application.
(f) (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) 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, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
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) Any 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 provisions 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) Any 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 each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole 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 any 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.
(g) Any sentence imposed under this article shall be subject to
the provisions of Sections 3000 and 3057 and any other applicable
provisions of law.
(h) 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.
(i) This section shall become operative on January 1, 2011.