Bill Text: CA SB6 | 2015-2016 | Regular Session | Amended
NOTE: There are more recent revisions of this legislation. Read Latest Draft
Bill Title: Parole: medical parole: compassionate release.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2016-09-30 - Chaptered by Secretary of State. Chapter 886, Statutes of 2016. [SB6 Detail]
Download: California-2015-SB6-Amended.html
Bill Title: Parole: medical parole: compassionate release.
Spectrum: Partisan Bill (Democrat 2-0)
Status: (Passed) 2016-09-30 - Chaptered by Secretary of State. Chapter 886, Statutes of 2016. [SB6 Detail]
Download: California-2015-SB6-Amended.html
BILL NUMBER: SB 6 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY AUGUST 19, 2016
AMENDED IN ASSEMBLY AUGUST 15, 2016
AMENDED IN ASSEMBLY JUNE 27, 2016
INTRODUCED BY Senator Galgiani
(Coauthor: Assembly Member Gonzalez)
DECEMBER 1, 2014
An act to amend Sections 1170 and Section
3550 of of, and to add Section 1170.02
to, the Penal Code, relating to parole.
LEGISLATIVE COUNSEL'S DIGEST
SB 6, as amended, Galgiani. Parole: medical parole: compassionate
release.
Existing law provides that the Board of Parole Hearings or its
successor in interest shall be the state's parole authority. Existing
law requires that a prisoner who is found to be permanently
medically incapacitated, as specified, be granted medical parole, if
the Board of Parole Hearings determines that the conditions under
which the prisoner would be released would not reasonably pose a
threat to public safety. Existing law exempts a prisoner sentenced to
death, a prisoner sentenced to life without the possibility of
parole, and a prisoner who is serving a sentence for which parole is
prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the
sentence of a prisoner if the court finds that the prisoner is
terminally ill, as specified, or the prisoner is permanently
medically incapacitated, as specified, and, in either case, the
conditions under which the prisoner would be released or receive
treatment do not pose a threat to public safety. Existing law exempts
a prisoner sentenced to death or a term of life without the
possibility of parole from eligibility for compassionate release
pursuant to these provisions.
This bill would additionally exempt from medical parole
eligibility and compassionate release eligibility a prisoner who was
convicted of the first-degree murder of a peace officer or a person
who had been a peace officer, as provided.
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 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 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 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 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 paragraph (2) of subdivision (d). In any case in which
the amount of preimprisonment credit under Section 2900.5 or any
other law is equal to or exceeds any 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 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
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
defendants 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 the
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) (A) The court shall have the discretion to resentence or
recall if the court finds that the facts described in clauses (i) and
(ii) or clauses (ii) and (iii) exist:
(i) 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.
(ii) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(iii) 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.
(B) This subdivision does not apply to the following:
(i) A prisoner sentenced to death or a term of life without the
possibility of parole.
(ii) A prisoner who was convicted of first-degree murder if the
victim was a peace officer, as defined in Section 830.1, 830.2,
830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4,
830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while
engaged in the performance of his or her duties, and the individual
knew, or reasonably should have known, that the victim was a peace
officer engaged in the performance of his or her duties, or the
victim was a peace officer or a former peace officer under any of the
above-enumerated sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
(C) The Board of Parole Hearings shall make findings pursuant to
this subdivision before making a recommendation for resentence or
recall to the court.
(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 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 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.
(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), any 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. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under that supervision,
unless in actual custody related to the sentence imposed by the
court, the defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court. Any time
period which is suspended because a person has absconded shall not be
credited toward the period of supervision.
(6) The sentencing changes made by the act that added
this subdivision shall be applied prospectively to any person
sentenced on or after October 1, 2011.
(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 any person sentenced
on or after January 1, 2015.
(i) This section shall remain in effect only until January 1,
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 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, 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 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 paragraph (2) of subdivision (d). In any case in which
the amount of preimprisonment credit under Section 2900.5 or any
other provision of law is equal to or exceeds any sentence imposed
pursuant to this chapter, except for a remaining portion of mandatory
supervision imposed pursuant to subparagraph (B) of paragraph (5) of
subdivision (h), the entire sentence shall be deemed to have been
served, except for the remaining period of mandatory supervision, and
the defendant shall not be actually delivered to the custody of the
secretary or the county correctional administrator. The court shall
advise the defendant that 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 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
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
defendants 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 the
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) (A) The court shall have the discretion to resentence or
recall if the court finds that the facts described in clauses (i) and
(ii) or clauses (ii) and (iii) exist:
(i) 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.
(ii) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(iii) 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.
(B) This subdivision does not apply to the following:
(i) A prisoner sentenced to death or a term of life without the
possibility of parole.
(ii) A prisoner who was convicted of first-degree murder if the
victim was a peace officer, as defined in Section 830.1, 830.2,
830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4,
830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while
engaged in the performance of his or her duties, and the individual
knew, or reasonably should have known, that the victim was a peace
officer engaged in the performance of his or her duties, or the
victim was a peace officer or a former peace officer under any of the
above-enumerated sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
(C) The Board of Parole Hearings shall make findings pursuant to
this subdivision before making a recommendation for resentence or
recall to the court.
(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 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 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.
(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), any 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.
Any proceeding to revoke or modify mandatory supervision under this
subparagraph shall be conducted pursuant to either subdivisions (a)
and (b) of Section 1203.2 or Section 1203.3. During the period when
the defendant is under that supervision, unless in actual custody
related to the sentence imposed by the court, the defendant shall be
entitled to only actual time credit against the term of imprisonment
imposed by the court. Any time period which is suspended because a
person has absconded shall not be credited toward the period of
supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(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 any person sentenced
on or after January 1, 2015.
(i) This section shall become operative on January 1, 2017.
SECTION 1. Section 1170.02 is added to the
Penal Code , to read:
1170.02. A prisoner is not eligible for resentence or recall
pursuant to subdivision (e) of Section 1170 if he or she was
convicted of first-degree murder if the victim was a peace officer,
as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33,
830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11,
or 830.12, who was killed while engaged in the performance of his or
her duties, and the individual knew, or reasonably should have known,
that the victim was a peace officer engaged in the performance of
his or her duties, or the victim was a peace officer or a former
peace officer under any of the above-enumerated sections, and was
intentionally killed in retaliation for the performance of his or her
official duties.
SEC. 3. SEC. 2. Section 3550 of the
Penal Code is amended to read:
3550. (a) Notwithstanding any other law, except as provided in
subdivision (b), if the head physician of an institution in which a
prisoner is incarcerated determines, as provided in this section,
that 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 care, and that incapacitation did not exist at the
time of sentencing, the prisoner shall be granted medical parole if
the Board of Parole Hearings determines that the conditions under
which he or she would be released would not reasonably pose a threat
to public safety.
(b) This section does not alter or diminish the rights conferred
under the Victims' Bill of Rights Act of 2008 (Marsy's Law).
Subdivision (a) does not apply to any of the following:
(1) A prisoner sentenced to death or life in prison without
possibility of parole.
(2) A prisoner who is serving a sentence for which parole,
pursuant to subdivision (a), is prohibited by any initiative statute.
(3) A prisoner who was convicted of first-degree murder if the
victim was a peace officer, as defined in Section 830.1, 830.2,
830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4,
830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while
engaged in the performance of his or her duties, and the individual
knew, or reasonably should have known, that the victim was a peace
officer engaged in the performance of his or her duties, or the
victim was a peace officer or a former peace officer under any of the
above-enumerated sections, and was intentionally killed in
retaliation for the performance of his or her official duties.
(c) When a physician employed by the Department of Corrections and
Rehabilitation who is the primary care provider for a prisoner
identifies a prisoner that he or she believes meets the medical
criteria for medical parole specified in subdivision (a), the primary
care physician shall recommend to the head physician of the
institution where the prisoner is located that the prisoner be
referred to the Board of Parole Hearings for consideration for
medical parole. Within 30 days of receiving that recommendation, if
the head physician of the institution concurs in the recommendation
of the primary care physician, he or she shall refer the matter to
the Board of Parole Hearings using a standardized form and format
developed by the department, and if the head physician of the
institution does not concur in the recommendation, he or she shall
provide the primary care physician with a written explanation of the
reasons for denying the referral.
(d) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for medical parole by contacting the head
physician at the prison or the department. Within 30 days of
receiving the request, the head physician of the institution shall,
in consultation with the prisoner's primary care physician, make a
determination regarding whether the prisoner meets the criteria for
medical parole as specified in subdivision (a) and, if the head
physician of the institution determines that the prisoner satisfies
the criteria set forth in subdivision (a), he or she shall refer the
matter to the Board of Parole Hearings using a standardized form and
format developed by the department. If the head physician of the
institution does not concur in the recommendation, he or she shall
provide the prisoner or his or her family member or designee with a
written explanation of the reasons for denying the application.
(e) The Department of Corrections and Rehabilitation shall
complete parole plans for inmates referred to the Board of Parole
Hearings for medical parole consideration. The parole plans shall
include, but not be limited to, the inmate's plan for residency and
medical care.
(f) Notwithstanding any other law, medical parole hearings shall
be conducted by two-person panels consisting of at least one
commissioner. In the event of a tie vote, the matter shall be
referred to the full board for a decision. Medical parole hearings
may be heard in absentia.
(g) Upon receiving a recommendation from the head physician of the
institution where a prisoner is located for the prisoner to be
granted medical parole pursuant to subdivision (c) or (d), the board,
as specified in subdivision (f), shall make an independent judgment
regarding whether the conditions under which the inmate would be
released pose a reasonable threat to public safety, and make written
findings related thereto.
(h) Notwithstanding any other law, the board or the Division of
Adult Parole Operations shall have the authority to impose any
reasonable conditions on prisoners subject to medical parole
supervision pursuant to subdivision (a), including, but not limited
to, the requirement that the parolee submit to electronic monitoring.
As a further condition of medical parole, pursuant to subdivision
(a), the parolee may be required to submit to an examination by a
physician selected by the board for the purpose of diagnosing the
parolee's current medical condition. In the event such an examination
takes place, a report of the examination and diagnosis shall be
submitted to the board by the examining physician. If the board
determines, based on that medical examination, that the person's
medical condition has improved to the extent that the person no
longer qualifies for medical parole, the board shall return the
person to the custody of the department.
(1) Notwithstanding any other law establishing maximum periods for
parole, a prisoner sentenced to a determinate term who is placed on
medical parole supervision prior to the earliest possible release
date and who remains eligible for medical parole, shall remain on
medical parole, pursuant to subdivision (a), until that earliest
possible release date, at which time the parolee shall commence
serving that period of parole provided by, and under the provisions
of, Chapter 8 (commencing with Section 3000) of Title 1.
(2) Notwithstanding any other law establishing maximum periods for
parole, a prisoner sentenced to an indeterminate term who is placed
on medical parole supervision prior to the prisoner's minimum
eligible parole date, and who remains eligible for medical parole,
shall remain on medical parole pursuant to subdivision (a) until that
minimum eligible parole date, at which time the parolee shall be
eligible for parole consideration under all other provisions of
Chapter 8 (commencing with Section 3000) of Title 1.
(i) The Department of Corrections and Rehabilitation shall, at the
time a prisoner is placed on medical parole supervision pursuant to
subdivision (a), ensure that the prisoner has applied for any federal
entitlement programs for which the prisoner is eligible, and has in
his or her possession a discharge medical summary, full medical
records, parole medications, and all property belonging to the
prisoner that was under the control of the department. Any additional
records shall be sent to the prisoner's forwarding address after
release to health care-related parole supervision.
(j) The provisions for medical parole set forth in this title
shall not affect an inmate's eligibility for any other form of parole
or release provided by law.
(k) (1) Notwithstanding any other law, the Department of
Corrections and Rehabilitation shall give notice to the county of
commitment and the proposed county of release, if that county is
different than the county of commitment, of any medical parole
hearing as described in subdivision (f), and of any medical parole
release as described in subdivision (g).
(2) Notice shall be made at least 30 days, or as soon as feasible,
prior to the time any medical parole hearing or medical parole
release is scheduled for an inmate receiving medical parole
consideration, regardless of whether the inmate is sentenced either
determinately or indeterminately.
