AB 2380: Defendants: minor children.
- Session Year: 2015-2016
- House: Assembly
- Latest Version Date: 2016-09-30
Existing law provides for the appointment of a guardian for a minor child. Existing law provides for the creation of a power of attorney for a minor child. Existing law defines a trustline provider as an adult who provides child care, in-home education services, or other specified services to a minor, and who is registered but not required to be licensed for purposes of child care.
This bill would require the court to provide a defendant at a felony arraignment who is, or whom the court reasonably deems to be, as specified, the sole custodial parent of one or more minor children specified information regarding guardianship for a minor, a guardianship power of attorney for a minor, and information regarding specified unlicensed child care providers.
Existing law provides for the appointment of a guardian for a minor child. Existing law provides for the creation of a power of attorney for a minor child. Existing law defines a trustline provider as an adult who provides child care, in-home education services, or other specified services to a minor, and who is registered but not required to be licensed for purposes of child care.
This bill would require the court to provide a defendant at a felony arraignment who is, or whom the court reasonably deems to be, as specified, the sole custodial parent of one or more minor children specified information regarding guardianship for a minor, a guardianship power of attorney for a minor, and information regarding specified unlicensed child care providers.
Existing law provides for the appointment of a guardian for a minor child. Existing law provides for the creation of a Power power of Attorney attorney for a minor child. Existing law defines a trustline provider as an adult who provides child care, in-home education services, or other specified services to a minor, and who is registered but not required to be licensed for purposes of child care.
This bill would require the court to provide a defendant at a felony arraignment who is is, or whom the court reasonably deems to be, as specified, the sole custodial parent of one or more minor children specified information regarding guardianship for a minor, a guardianship power of attorney for a minor, and information regarding specified unlicensed child care providers.
Existing law provides for the appointment of a guardian for a minor child. Existing law provides for the creation of a Power of Attorney for a minor child. Existing law defines a trustline provider as an adult who provides child care, in-home education services, or other specified services to a minor, and who is registered but not required to be licensed for purposes of child care.
This bill would require the court to provide a defendant at a felony arraignment who is the sole custodial parent of one or more minor children specified information regarding guardianship for a minor, a guardianship power of attorney for a minor, and information regarding specified unlicensed child care providers.
Existing law requires the State Department of Social Services to license and regulate community care facilities, including foster family homes, certified family homes of licensed foster family agencies, and group homes. Existing law requires that persons providing care or services at these homes or facilities obtain either a criminal record clearance or an exemption from disqualification from the department, as prescribed. Under existing law, a violation of these provisions is a crime.
This bill would additionally require an informal caregiver, as defined, to obtain a criminal records clearance or exemption from the department for each adult residing in, or regularly present in, the home, if the caregiver has been designated by a parent who has been convicted of a felony and sentenced to imprisonment for a period of at least one year. The bill would require the child to be removed from the custody of the caregiver if the caregiver is found to have committed an offense for which a criminal records clearance or exemption may not be issued. The bill would exempt from these requirements an adult sibling or an informal caregiver who began caring for the child before January 1, 2017. Because a violation of these requirements would be a crime, this bill would impose a state-mandated local program.
The bill would also require the court, when it sentences a person to a term of imprisonment of one year or more, to inform the person that an informal caregiver designated by the person to care for the persons minor children may be required to obtain a criminal records clearance or exemption from the department.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law requires the State Department of Social Services to license and regulate community care facilities, including foster family homes, certified family homes of licensed foster family agencies, and group homes. Existing law requires that persons providing care or services at these homes or facilities obtain either a criminal record clearance or an exemption from disqualification from the department, as prescribed. Under existing law, a violation of these provisions is a crime.
This bill would additionally require an informal caregiver, as defined, to obtain a criminal records clearance or exemption from the department for each adult residing in, or regularly present in, the home, if the caregiver has been designated by a parent who has been convicted of a felony and sentenced to imprisonment for a period of at least one year. The bill would require the child to be removed from the custody of the caregiver if the caregiver is found to have committed an offense for which a criminal records clearance or exemption may not be issued. The bill would exempt from these requirements an adult sibling or an informal caregiver who began caring for the child before January 1, 2017. Because a violation of these requirements would be a crime, this bill would impose a state-mandated local program.
The bill would also require the court, when it sentences a person to a term of imprisonment of one year or more, to inform the person that an informal caregiver designated by the person to care for the persons minor children may be required to obtain a criminal records clearance or exemption from the department.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law requires the State Department of Social Services to license and regulate community care facilities, including foster family homes, certified family homes of licensed foster family agencies, and group homes. Existing law requires that persons providing care or services at these homes or facilities obtain either a criminal record clearance or an exemption from disqualification from the department, as prescribed. Under existing law, a violation of these provisions is a crime.
This bill would additionally require an informal caregiver, as defined, to obtain a criminal records clearance or exemption from the department for each adult residing in, or regularly present in, the home, if the caregiver has been designated by a parent who has been convicted of a felony and sentenced to imprisonment for a period of at least one year. The bill would exempt from these requirements an adult sibling or an informal caregiver who began caring for the child before January 1, 2017. Because a violation of these requirements would be a crime, this bill would impose a state-mandated local program.
The bill would also require the court, when it sentences a person to a term of imprisonment of one year or more, to inform the person that an informal caregiver designated by the person to care for the persons minor children may be required to obtain a criminal records clearance or exemption from the department.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
(a)At the arraignment of a defendant who is charged with a felony and who is, or whom the court reasonably deems to be, the sole custodial parent of one or more minor children, the court shall provide the following to the defendant:
(1)Judicial Council Form GC-250, the Guardianship Pamphlet.
(2)Information regarding a power of attorney for a minor child.
(3)Information regarding trustline background examinations pertaining to child care providers as provided in Chapter 3.35 (commencing with Section 1596.60) of Division 2 of the Health and Safety Code.
(b)If the defendant states, orally or in writing, at the arraignment that he or she is a sole custodial parent of one or more minor children, the court may reasonably deem the defendant to be a sole custodial parent of one or more minor children without further investigation. The court may, but is not required to, make that determination on the basis of information other than the defendants statement.
(a)At the arraignment of a defendant who is charged with a felony and who is, or whom the court reasonably deems to be, the sole custodial parent of one or more minor children, the court shall provide the following to the defendant:
(1)Judicial Council Form GC-250, the Guardianship Pamphlet.
(2)Information regarding a power of attorney for a minor child.
(3)Information regarding trustline background examinations pertaining to child care providers as provided in Chapter 3.35 (commencing with Section 1596.60) of Division 2 of the Health and Safety Code.
(b)If the defendant states, orally or in writing, at the arraignment that he or she is a sole custodial parent of one or more minor children, the court may reasonably deem the defendant to be a sole custodial parent of one or more minor children without further investigation. The court may, but is not required to, make that determination on the basis of information other than the defendants statement.
(a)At the arraignment of a defendant who is charged with a felony and who is is, or whom the court reasonably deems to be, the sole custodial parent of one or more minor children, the court shall provide the following to the defendant:
(a)
(1)Judicial Council Form GC-250, the Guardianship Pamphlet.
(b)
(2)Information regarding a Power power of Attorney attorney for a minor child.
(c)
(3)Information regarding trustline background examinations pertaining to child care providers as provided in Chapter 3.35 (commencing with Section 1596.60) of Division 2 of the Health and Safety Code.
(b)If the defendant states, orally or in writing, at the arraignment that he or she is a sole custodial parent of one or more minor children, the court may reasonably deem the defendant to be a sole custodial parent of one or more minor children without further investigation. The court may, but is not required to, make that determination on the basis of information other than the defendants statement.
At the arraignment of a defendant who is charged with a felony and who is the sole custodial parent of one or more minor children, the court shall provide the following to the defendant:
(a)Judicial Council Form GC-250, the Guardianship Pamphlet.
(b)Information regarding a Power of Attorney for a minor child.
(c)Information regarding trustline background examinations pertaining to child care providers as provided in Chapter 3.35 (commencing with Section 1596.60) of Division 2 of the Health and Safety Code.
SECTION 1.Article 5.8 (commencing with Section 1559.200) is added to Chapter 3 of Division 2 of the Health and Safety Code, to read:5.8.Informal Caregivers1559.200.(a)An informal caregiver shall obtain a criminal records clearance or exemption from the State Department of Social Services for each adult residing in, or regularly present in, the home, as set forth in Section 1522 of the Health and Safety Code, if the caregiver has been designated as the caregiver by a parent who has been convicted of a felony and sentenced to imprisonment for a period of at least one year.
(b)If the informal caregiver is found to have committed an offense for which the department may not issue a criminal records clearance or exemption, the child shall be removed from the custody of the informal caregiver.
(c)This section does not apply to either of the following:
(1)An informal caregiver who is an adult sibling of the child.
(2)An informal caregiver who began caring for the child before January 1, 2017.
(d)For purposes of this section, informal caregiver means a person who has assumed responsibility for the care and custody of a child, without the involvement of the court, child protective services agency, or other governmental agency.
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 defendants 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 officers 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 officers 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)(1)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.
(2)When the court sentences a person to a term of imprisonment of one year or more, it shall inform the person that an informal caregiver designated by the person to care for the persons minor child may be subject to the requirements of Section 1559.200 of the Health and Safety Code.
(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 defendants 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 defendants statement describing his or her remorse and work towards rehabilitation, and the defendants 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 defendants 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 defendants 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 prisoners 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 prisoners 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 wardens 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 prisoners medical condition and prognosis, and as to the recall and resentencing procedures. If the inmate is deemed mentally unfit, the warden or the wardens representative shall contact the inmates emergency contact and provide the information described in paragraph (2).
(5)The warden or the wardens 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 prisoners medical condition and the status of the prisoners 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 wardens 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 prisoners 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 courts order, unless a longer time period is agreed to by the inmate. At the time of release, the warden or the wardens 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 prisoners 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 courts discretion.
(B)The portion of a defendants 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.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)An informal caregiver shall obtain a criminal records clearance or exemption from the State Department of Social Services for each adult residing in, or regularly present in, the home, as set forth in Section 1522 of the Health and Safety Code, if the caregiver has been designated as the caregiver by a parent who has been convicted of a felony and sentenced to imprisonment for a period of at least one year.
(b)If the informal caregiver is found to have committed an offense for which the department may not issue a criminal records clearance or exemption, the child shall be removed from the custody of the informal caregiver.
(b)
(c)This section does not apply to either of the following:
(1)An informal caregiver who is an adult sibling of the child.
(2)An informal caregiver who began caring for the child before January 1, 2017.
(c)
(d)For purposes of this section, informal caregiver means a person who has assumed responsibility for the care and custody of a child, without the involvement of the court, child protective services agency, or other governmental agency.
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 defendants 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 officers 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 officers 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)(1)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.
(2)When the court sentences a person to a term of imprisonment of one year or more, it shall inform the person that an informal caregiver designated by the person to care for the persons minor child may be subject to the requirements of Section 1559.200 of the Health and Safety Code.
(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 defendants 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 defendants statement describing his or her remorse and work towards rehabilitation, and the defendants 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 defendants 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 defendants 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 prisoners 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 prisoners 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 wardens 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 prisoners medical condition and prognosis, and as to the recall and resentencing procedures. If the inmate is deemed mentally unfit, the warden or the wardens representative shall contact the inmates emergency contact and provide the information described in paragraph (2).
(5)The warden or the wardens 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 prisoners medical condition and the status of the prisoners 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 wardens 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 prisoners 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 courts order, unless a longer time period is agreed to by the inmate. At the time of release, the warden or the wardens 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 prisoners 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 courts discretion.
(B)The portion of a defendants 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.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
(a)An informal caregiver shall obtain a criminal records clearance or exemption for each adult residing in, or regularly present in, the home, as set forth in Section 1522 of the Health and Safety Code, if the caregiver has been designated as the caregiver by a parent who has been convicted of a felony and sentenced to imprisonment for a period of at least one year.
(b)This section does not apply to either of the following:
(1)An informal caregiver who is an adult sibling of the child.
(2)An informal caregiver who began caring for the child before January 1, 2017.
(c)For purposes of this section, informal caregiver means a person who has assumed responsibility for the care and custody of a child, without the involvement of the court, child protective services agency, or other governmental agency.
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 defendants 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 officers 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 officers 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)(1)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.
(2)When the court sentences a person to a term of imprisonment of one year or more, it shall inform the person that an informal caregiver designated by the person to care for the persons minor child may be subject to the requirements of Section 1559.200 of the Health and Safety Code.
(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 defendants 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 defendants statement describing his or her remorse and work towards rehabilitation, and the defendants 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 defendants 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 defendants 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 prisoners 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 prisoners 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 wardens 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 prisoners medical condition and prognosis, and as to the recall and resentencing procedures. If the inmate is deemed mentally unfit, the warden or the wardens representative shall contact the inmates emergency contact and provide the information described in paragraph (2).
(5)The warden or the wardens 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 prisoners medical condition and the status of the prisoners 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 wardens 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 prisoners 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 courts order, unless a longer time period is agreed to by the inmate. At the time of release, the warden or the wardens 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 prisoners 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 courts discretion.
(B)The portion of a defendants 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.
SEC. 3.No reimbursement is required by this act pursuant to Section 6 of Article XIIIB of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIIIB of the California Constitution.
|
Date
|
Status
|
|---|---|
| Aug 9, 2016 | Read second time. Ordered to third reading. |
| May 12, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0.) |
| May 19, 2016 | Referred to Com. on PUB. S. |
| Jun 29, 2016 | From committee: Do pass. (Ayes 7. Noes 0.) (June 28). |
| Jun 30, 2016 | Read second time. Ordered to third reading. |
| Aug 3, 2016 | Ordered to special consent calendar. |
| Aug 4, 2016 | From Consent Calendar. |
| Aug 4, 2016 | Ordered to third reading. |
| Aug 8, 2016 | Read third time and amended. Ordered to second reading. |
| May 12, 2016 | Read third time. Passed. Ordered to the Senate. (Ayes 78. Noes 0. Page 4772.) |
| Aug 15, 2016 | Read third time. Passed. Ordered to the Assembly. |
| Aug 15, 2016 | Read third time. Passed. Ordered to the Assembly. (Ayes 38. Noes 0. Page 4989.). |
| Aug 15, 2016 | Read third time. Passed. Ordered to the Assembly. (Ayes 38. Noes 0.). |
| Aug 16, 2016 | In Assembly. Concurrence in Senate amendments pending. May be considered on or after August 18 pursuant to Assembly Rule 77. |
| Aug 22, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. |
| Aug 22, 2016 | Senate amendments concurred in. To Engrossing and Enrolling. (Ayes 78. Noes 0. Page 6044.). |
| Aug 26, 2016 | Enrolled and presented to the Governor at 4:30 p.m. |
| Apr 18, 2016 | Re-referred to Com. on PUB. S. |
| Feb 19, 2016 | From printer. May be heard in committee March 20. |
| Mar 8, 2016 | Referred to Coms. on HUM. S. and PUB. S. |
| Mar 29, 2016 | In committee: Set, first hearing. Hearing canceled at the request of author. |
| Mar 31, 2016 | From committee chair, with author's amendments: Amend, and re-refer to Com. on HUM. S. Read second time and amended. |
| Apr 4, 2016 | Re-referred to Com. on HUM. S. |
| Apr 14, 2016 | From committee: Amend, and do pass as amended and re-refer to Com. on PUB. S. (Ayes 7. Noes 0.) (April 12). |
| Apr 18, 2016 | Joint Rule 62(a), file notice suspended. |
| Apr 18, 2016 | Joint Rule 62(a), file notice suspended. (Page 4393.) |
| Feb 18, 2016 | Read first time. To print. |
| Apr 18, 2016 | Read second time and amended. |
| Apr 20, 2016 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (April 19). Re-referred to Com. on APPR. |
| May 2, 2016 | Ordered to second reading. |
| May 2, 2016 | Withdrawn from committee. |
| May 3, 2016 | Read second time. Ordered to third reading. |
| May 12, 2016 | In Senate. Read first time. To Com. on RLS. for assignment. |
| May 12, 2016 | Read third time. Passed. Ordered to the Senate. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 22, 2016 | AB 2380 ALEJO Concurrence in Senate Amendments | Assembly Floor |
Passed |
|
| Aug 15, 2016 | Assembly 3rd Reading AB2380 Alejo By Cannella | Senate Floor |
Passed |
|
| Jun 28, 2016 | Do pass | Senate Standing Committee on Public Safety |
Passed |
|
| May 12, 2016 | AB 2380 ALEJO Assembly Third Reading | Assembly Floor |
Passed |
|
| Apr 19, 2016 | Do pass and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
|
| Apr 12, 2016 | Do pass as amended and be re-referred to the Committee on [Public Safety] | Assembly Standing Committee on Human Services |
Passed |
This list shows positions taken on this bill by organizations on the date displayed, which is linked to the original source.
Positions by individuals are not included.
|
Organization
|
Position
|
Date
|
|---|---|---|
| California Professional Firefighters | * Support | Jun 26, 2018 |
| Capstone Fire and Safety | * Against | Jun 26, 2018 |
| Children'S Law Center Of California | ** Against | Apr 12, 2016 |
| County of Monterey | * Support | Apr 12, 2016 |
| Edison International And Affiliates Including Southern California Edison | * Support | Jun 26, 2018 |
| LA Dependency Court Lawyers | * For If Amend | Apr 12, 2016 |
| Legal Services for Prisoners with Children | ** Against | Apr 12, 2016 |
| Monterey County Department of Social Services | ** Support | Aug 22, 2016 |
| Monterey County District Attorney's Office | ** Support | Apr 12, 2016 |
| Peace Officers Research Association Of California | ** Support | Aug 22, 2016 |
| Public Council Childrens Rights Project | * For If Amend | Apr 12, 2016 |
| San Diego Gas and Electric Company | * For If Amend | Jun 26, 2018 |
| Youth Law Center | * Against | Apr 12, 2016 |
| Youth Law Center | * For If Amend | Apr 12, 2016 |
CONCURRENCE IN SENATE AMENDMENTS
CSA1 Bill Id:AB 2380
Author:(Alejo)
As Amended Ver:August 8, 2016
Majority vote
ASSEMBLY: | 78-0 | (May 12, 2016) | SENATE: | 38-0 | (August 15, 2016) |
Original Committee Reference: HUM. S.
SUMMARY: Requires the court to provide a defendant who is charged with a felony and who is, or whom the court reasonably deems to be, as specified, the sole custodial parent of one or more minor children with: a Judicial Council form on guardianship, information regarding power of attorney for a minor child, and information regarding TrustLine background examinations, as specified.
The Senate amendments:
- Stipulate that if the court reasonably deems a defendant to be a sole custodial parent of one or more minor children, it must provide the information required by this bill.
- State that a court may reasonably deem a defendant to be a sole custodial parent without further investigation if the defendant states, orally or in writing, that he or she is a sole custodial parent of one or more minor children.
- Permit, but do not require, the court to make a determination of sole custodial parenthood based on information other than the defendant's statement.
EXISTING LAW:
- Directs the Department of Social Services (DSS) to establish and continuously update a TrustLine registry containing information on license-exempt child care providers who have submitted TrustLine background-check information and who have undergone the specified background check. (Health and Safety Code Section (HSC) 1596.60 et seq.)
FISCAL EFFECT: This bill is keyed non-fiscal by the Legislative Counsel.
COMMENTS:
Care options for children of incarcerated parents: Research indicates that parental incarceration can be more traumatic for children than a parent's death or divorce, and it can have damaging impacts on a child's education, health, and social relationships. For children who don't have another parent at home, being placed with a relative is often the most stable option, allowing a child to maintain relationships and, ideally, to live at or near his or her home and attend his or her regular school.
For a parent who is sentenced to prison and who is the sole guardian, options exist for formalizing the relationship between a chosen caregiver and a parent's child(ren). These can include more informal arrangements, such as completing a Caregiver's Authorization Affidavit, which is a two-page form that an authorized relative can sign which allows a qualified relative to enroll a child in school and agree to school-related medical care for the child. This option does not give a caregiver legal custody over a child. Another option is to grant Power of Attorney to a caregiver, which authorizes an individual to act as a caregiver for a child, and to make decisions regarding the child on behalf of parent. More formal options could also be sought, including legal guardianship, whereby the court may appoint an individual to have custody of a child indefinitely. Legal guardianship does not terminate a parent's rights, but suspends them. These, and other, options each come with various benefits and drawbacks, depending on the circumstances, and parents need to consider their family's particular needs and situation when deciding which, if any, option to pursue.
TrustLine: TrustLine, created by the California Legislature in the 1980s, is a registry of license-exempt child care providers who have cleared a criminal background check run by DSS that includes a check of the Child Abuse Central Index (CACI) administered by the Attorney General and the California Department of Justice's California Criminal History System, and can involve a check of criminal history records at the Federal Bureau of Investigation. Child care providers listed on TrustLine do not have either of the following: disqualifying criminal convictions or substantiated reports of child abuse found on CACI. Applicants for the registry must complete a form, submit fingerprints, and pay a one-time fee to DSS. Fees can vary, and start at approximately $135. Parents are able to check if an individual is listed on the registry by calling a toll-free number.
Need for this bill: According to the author, "I authored this legislation in response to the recent tragic killing of two young children and the brutal torture of their sister from East Salinas who had been placed in the custody of their aunt after their only living parent was sent to prison. Ensuring the health and safety of our children is one of the most essential roles of government. Our system failed these children. This bill requires the court, at the arraignment of a parent who is charged with a felony and who is the sole guardian of his or her child, to provide that parent with information on options regarding the provision of care for his or her child, in the parent's absence, including: ways in which to formalize the relationship with the person with whom he/she is entrusting the care of his/her child (such as appointing power of attorney), and the availability of services to research a potential caretaker's background."
Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0003902
Click here to enter text.
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 2380
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 78-0, 5/12/16 - See last page for vote
DIGEST: This bill requires the court, at the arraignment of a defendant charged with a felony who is the sole custodial parent of a minor child, to provide specified information on options regarding the care of the child.
Senate Floor Amendments of 8/8/16 clarify that if the defendant states, orally or in writing, at the arraignment that he or she is the sole custodial parent of one or more minor children the court may rely on that statement and is not required to investigate further although the court may make the determination on information other than the defendant’s statement if it so chooses.
Existing law:
- States that the arraignment consists of reading the accusatory pleading to the defendant, providing the defendant a copy of the accusatory pleading, and asking the defendant whether he or she pleads guilty or not guilty to the accusatory pleading. (Penal Code, § 988.)
- States that if the defendant appears at arraignment without counsel, the court shall inform defendant of the right to counsel being arraigned, and shall ask the defendant whether he or she desires the assistance of counsel. (Penal Code, §§ 858(a); 987(a).)
- Requires the court to advise defendants at arraignment that there are special provisions of law applicable to those who have active duty or veteran status, and shall inform the defendant that if he or she is a member of the military or a veteran that he or she may request the Judicial Council form explaining those special rights. (Penal Code, § 858 (d).)
- Requires, prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, the court to advise the defendant on the record about the potential immigration consequences of a plea. (Penal Code, § 1016.5 (a).)
This bill provides that at the arraignment of a defendant who is charged with a felony and who is the sole custodial parent of one or more minor children, the court shall provide the following to the defendant: the Judicial Council form the “Guardianship Pamphlet;” information regarding a Power of Attorney for a minor child; and information regarding trustline background examinations pertaining to childcare providers.
Background
According to the author:
In December of 2015, authorities found the bodies of a 3-year-old and a 6-year-old child in a storage container in Northern California. The children had been in the custody of Tami Huntsman, an informal caregiver who was designated by their father. The father had been sentenced to a long prison term and children’s mother was deceased. Huntsman has since been charged with the children’s murder in Monterey County.
A 2000 study conducted by the California Research Bureau on the Children of Incarcerated Parents stated that, “Police do not routinely ask at the time of arrest whether their prisoners have children, nor do sentencing judges or correctional agencies regularly raise this question”, and that “these children seem to fall through the cracks”. In addition, Parents in Prison and Their Minor Children, a 2008 Special Report by the Bureau of Justice Statistics stated that “An estimated 809,800 prisoners …held in the nation’s prisons at midyear 2007 were parents of minor children, or children under age 18.”
Doing the most to ensure the health and safety of our children is one of the most essential roles of government. Our system failed these children. There is currently no requirement for the courts to provide any information or guidance regarding steps incarcerated parents can take to ensure the wellbeing of their children with a new non parent guardian. To help prevent tragedies in cases such as that of Tami Huntsman, it is absolutely necessary that the courts, at a minimum, provide information on what steps can be taken to keep children safe.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
Monterey County Department of Social Services
Peace Officers Research Association of California
OPPOSITION: (Verified) 8/9/16)
None received
ASSEMBLY FLOOR: 78-0, 5/12/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Burke, Jones-Sawyer
Prepared by: Mary Kennedy / PUB. S. /
8/10/16 15:57:27
**** END ****
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | AB |
THIRD READING
Bill No: AB 2380
:
SENATE PUBLIC SAFETY COMMITTEE: 7-0, 6/28/16
AYES: Hancock, Anderson, Glazer, Leno, Liu, Monning, Stone
ASSEMBLY FLOOR: 78-0, 5/12/16 - See last page for vote
DIGEST: This bill requires the court, at the arraignment of a defendant charged with a felony who is the sole custodial parent of a minor child, to provide specified information on options regarding the care of the child.
Existing law:
- States that the arraignment consists of reading the accusatory pleading to the defendant, providing the defendant a copy of the accusatory pleading, and asking the defendant whether he or she pleads guilty or not guilty to the accusatory pleading. (Penal Code, § 988.)
- States that if the defendant appears at arraignment without counsel, the court shall inform defendant of the right to counsel being arraigned, and shall ask the defendant whether he or she desires the assistance of counsel. (Penal Code, §§ 858(a); 987(a).)
- Requires the court to advise defendants at arraignment that there are special provisions of law applicable to those who have active duty or veteran status, and shall inform the defendant that if he or she is a member of the military or a veteran that he or she may request the Judicial Council form explaining those special rights. (Penal Code, § 858 (d).)
- Requires, prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, the court to advise the defendant on the record about the potential immigration consequences of a plea. (Penal Code, § 1016.5 (a).)
This bill provides that at the arraignment of a defendant who is charged with a felony and who is the sole custodial parent of one or more minor children, the court shall provide the following to the defendant: the Judicial Council form the “Guardianship Pamphlet;” information regarding a Power of Attorney for a minor child; and information regarding trustline background examinations pertaining to childcare providers.
Background
According to the author:
In December of 2015, authorities found the bodies of a 3-year-old and a 6-year-old child in a storage container in Northern California. The children had been in the custody of Tami Huntsman, an informal caregiver who was designated by their father. The father had been sentenced to a long prison term and children’s mother was deceased. Huntsman has since been charged with the children’s murder in Monterey County.
A 2000 study conducted by the California Research Bureau on the Children of Incarcerated Parents stated that, “Police do not routinely ask at the time of arrest whether their prisoners have children, nor do sentencing judges or correctional agencies regularly raise this question”, and that “these children seem to fall through the cracks”. In addition, Parents in Prison and Their Minor Children, a 2008 Special Report by the Bureau of Justice Statistics stated that “An estimated 809,800 prisoners …held in the nation’s prisons at midyear 2007 were parents of minor children, or children under age 18.”
Doing the most to ensure the health and safety of our children is one of the most essential roles of government. Our system failed these children. There is currently no requirement for the courts to provide any information or guidance regarding steps incarcerated parents can take to ensure the wellbeing of their children with a new non parent guardian. To help prevent tragedies in cases such as that of Tami Huntsman, it is absolutely necessary that the courts, at a minimum, provide information on what steps can be taken to keep children safe.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
Monterey County Department of Social Services
Peace Officers Research Association of California
None received
ASSEMBLY FLOOR: 78-0, 5/12/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Calderon, Campos, Chang, Chau, Chávez, Chiu, Chu, Cooley, Cooper, Dababneh, Dahle, Daly, Dodd, Eggman, Frazier, Beth Gaines, Gallagher, Cristina Garcia, Eduardo Garcia, Gatto, Gipson, Gomez, Gonzalez, Gordon, Gray, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Kim, Lackey, Levine, Linder, Lopez, Low, Maienschein, Mathis, Mayes, McCarty, Medina, Melendez, Mullin, Nazarian, Obernolte, O'Donnell, Olsen, Patterson, Quirk, Ridley-Thomas, Rodriguez, Salas, Santiago, Steinorth, Mark Stone, Thurmond, Ting, Wagner, Waldron, Weber, Wilk, Williams, Wood, Rendon
NO VOTE RECORDED: Burke, Jones-Sawyer
7/29/16 10:43:34
**** END ****
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2380 Hearing Date: June 28, 2016
Author: | Alejo | ||
Version: | April 18, 2016 | ||
Urgency: | No | Fiscal: | No |
Consultant: | MK | ||
Subject: Defendants: Minor Children
HISTORY
Source: Author
Prior Legislation: None
Support: Peace Officers Research Association of California; Monterey County Department of Social Services
Opposition: None known
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to require the court, at the arraignment of a defendant charged with a felony who is the sole custodial parent of a minor child, to provide specified information on options regarding the care of the child.
Existing law states that the arraignment consists of reading the accusatory pleading to the defendant, providing the defendant a copy of the accusatory pleading, and asking the defendant whether he or she pleads guilty or not guilty to the accusatory pleading. (Penal Code, § 988.)
Existing law states that if the defendant appears at arraignment without counsel, the court shall inform defendant of the right to counsel being arraigned, and shall ask the defendant whether he or she desires the assistance of counsel. (Penal Code, §§ 858(a); 987(a).)
Existing law requires the court to advise defendants at arraignment that there are special provisions of law applicable to those who have active duty or veteran status, and shall inform the defendant that if he or she is a member of the military or a veteran that he or she may request the Judicial Council form explaining those special rights. (Penal Code, § 858 (d).)
Existing law requires, prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, the court to advise the defendant on the record about the potential immigration consequences of a plea. (Penal Code, § 1016.5 (a).)
This bill provides that at the arraignment of a defendant who is charged with a felony and who is the sole custodial parent of one or more minor children, the court shall provide the following to the defendant:
- The Judicial Council form the “Guardianship Pamphlet.”
- Information regarding a Power of Attorney for a minor child.
- Information regarding trustline background examinations pertaining to childcare providers.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
- 143% of design bed capacity by June 30, 2014;
- 141.5% of design bed capacity by February 28, 2015; and,
- 137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
- Whether a proposal erodes a measure which has contributed to reducing the prison population;
- Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
- Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
- Whether a proposal corrects a constitutional problem or legislative drafting error; and
- Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
1. Need for This Bill
According to the author:
In December of 2015, authorities found the bodies of a 3-year-old and a 6-year-old child in a storage container in Northern California. The children had been in the custody of Tami Huntsman, an informal caregiver who was designated by their father. The father had been sentenced to a long prison term and children’s mother was deceased. Huntsman has since been charged with the children’s murder in Monterey County.
A 2000 study conducted by the California Research Bureau on the Children of Incarcerated Parents stated that, “Police do not routinely ask at the time of arrest whether their prisoners have children, nor do sentencing judges or correctional agencies regularly raise this question” , and that “these children seem to fall through the cracks”. In addition, Parents in Prison and Their Minor Children, a 2008 Special Report by the Bureau of Justice Statistics stated that “An estimated 809,800 prisoners …held in the nation’s prisons at midyear 2007 were parents of minor children, or children under age 18.
Doing the most to ensure the health and safety of our children is one of the most essential roles of government. Our system failed these children. There is currently no requirement for the courts to provide any information or guidance regarding steps incarcerated parents can take to ensure the wellbeing of their children with a new non parent guardian. To help prevent tragedies in cases such as that of Tami Huntsman, it is absolutely necessary that the courts, at a minimum, provide information on what steps can be taken to keep children safe.
2. Care Options for Children of Incarcerated Parents
Parental incarceration can be traumatic for children, and it can have damaging impacts on a child's education, health, and social relationships. For children who do not have another parent at home, being placed with a relative is often the most stable option, allowing a child to maintain relationships and, ideally, to live at or near his or her home and attend his or her regular school.
For a parent who is sentenced to prison and who is the sole guardian, options exist for formalizing the relationship between a chosen caregiver and a parent's child(ren). These can include more informal arrangements, such as completing a Caregiver’s Authorization Affidavit, which is a two-page form that an authorized relative can sign which allows a qualified relative to enroll a child in school and agree to school-related medical care for the child. This option does not give a caregiver legal custody over a child. Another option is to grant Power of Attorney to a caregiver, which authorizes an individual to act as a caregiver for a child, and to make decisions regarding the child on behalf of parent. More formal options could also be sought, including legal guardianship, whereby the court may appoint an individual to have custody of a child indefinitely. Legal guardianship does not terminate a parent’s rights, but suspends them. These, and other, options each come with various benefits and drawbacks, depending on the circumstances, and parents need to consider their family's particular needs and situation when deciding which, if any, option to pursue.
3. TrustLine
TrustLine, created by the California Legislature in the 1980s, is a registry of license-exempt child care providers who have cleared a criminal background check run by the Department of Social Services that includes a check of the Child Abuse Central Index (CACI) administered by the Attorney General and the California Department of Justice’s California Criminal History System, and can involve a check of criminal history records at the Federal Bureau of Investigation. Child care providers listed on TrustLine do not have either of the following: disqualifying criminal convictions or substantiated reports of child abuse found on CACI. AB Applicants for the registry must complete a form, submit fingerprints, and pay a one-time fee to DSS. Fees can vary, and start at approximately $135. Parents are able to check if an individual is listed on the registry by calling a toll-free number.
4. Arraignment
The arraignment is the defendant's first court appearance. At this time, the defendant is informed of the nature of the charges, is given a copy of the accusatory pleading, and is also given an opportunity to enter a plea. (Penal Code § 988.) At this time the judge or magistrate also advises the defendant of the right to counsel and the right to a court appointed attorney, if he or she is indigent.
At arraignment, this bill would also have the judge provide a defendant who is the sole custodial parent of one or more minor children: a Judicial Council from called the “Guardianship Pamphlet”; Information regarding a Power of Attorney for a minor child; and information regarding trustline background examinations.
-- END –
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: AB 2380 Hearing Date: June 21, 2016
Author: | Alejo | ||
Version: | April 18, 2016 Click here to enter text. | ||
Urgency: | No | Fiscal: | No |
Consultant: | MK | ||
Subject: Defendants: minor children
HISTORY
Source: Author
Prior Legislation: None
Support: Peace Officers Research Association of California; Monterey County Department of Social Services
Opposition: None known
Assembly Floor Vote: 78 - 0
PURPOSE
The purpose of this bill is to require the court, at the arraignment of a defendant charged with a felony who is the sole custodial parent of a minor child, to provide specified information on options regarding the care of the child.
Existing law states that the arraignment consists of reading the accusatory pleading to the defendant, providing the defendant a copy of the accusatory pleading, and asking the defendant whether he or she pleads guilty or not guilty to the accusatory pleading. (Penal Code, § 988.)
Existing law states that if the defendant appears at arraignment without counsel, the court shall inform defendant of the right to counsel being arraigned, and shall ask the defendant whether he or she desires the assistance of counsel. (Penal Code, §§ 858(a); 987(a).)
Existing law requires the court to advise defendants at arraignment that there are special provisions of law applicable to those who have active duty or veteran status, and shall inform the defendant that if he or she is a member of the military or a veteran that he or she may request the Judicial Council form explaining those special rights. (Penal Code, § 858 (d).)
Existing law requires, prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, the court to advise the defendant on the record about the potential immigration consequences of a plea. (Penal Code, § 1016.5 (a).)
This bill provides that at the arraignment of a defendant who is charged with a felony and who is the sole custodial parent of one or more minor children, the court shall provide the following to the defendant:
- The Judicial Council form the “Guardianship Pamphlet.”
- Information regarding a Power of Attorney for a minor child.
- Information regarding trustline background examinations pertaining to childcare providers.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past several years this Committee has scrutinized legislation referred to its jurisdiction for any potential impact on prison overcrowding. Mindful of the United States Supreme Court ruling and federal court orders relating to the state’s ability to provide a constitutional level of health care to its inmate population and the related issue of prison overcrowding, this Committee has applied its “ROCA” policy as a content-neutral, provisional measure necessary to ensure that the Legislature does not erode progress in reducing prison overcrowding.
On February 10, 2014, the federal court ordered California to reduce its in-state adult institution population to 137.5% of design capacity by February 28, 2016, as follows:
- 143% of design bed capacity by June 30, 2014;
- 141.5% of design bed capacity by February 28, 2015; and,
- 137.5% of design bed capacity by February 28, 2016.
In December of 2015 the administration reported that as “of December 9, 2015, 112,510 inmates were housed in the State’s 34 adult institutions, which amounts to 136.0% of design bed capacity, and 5,264 inmates were housed in out-of-state facilities. The current population is 1,212 inmates below the final court-ordered population benchmark of 137.5% of design bed capacity, and has been under that benchmark since February 2015.” (Defendants’ December 2015 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).) One year ago, 115,826 inmates were housed in the State’s 34 adult institutions, which amounted to 140.0% of design bed capacity, and 8,864 inmates were housed in out-of-state facilities. (Defendants’ December 2014 Status Report in Response to February 10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman v. Brown, Plata v. Brown (fn. omitted).)
While significant gains have been made in reducing the prison population, the state must stabilize these advances and demonstrate to the federal court that California has in place the “durable solution” to prison overcrowding “consistently demanded” by the court. (Opinion Re: Order Granting in Part and Denying in Part Defendants’ Request For Extension of December 31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court, Coleman v. Brown, Plata v. Brown (2-10-14). The Committee’s consideration of bills that may impact the prison population therefore will be informed by the following questions:
- Whether a proposal erodes a measure which has contributed to reducing the prison population;
- Whether a proposal addresses a major area of public safety or criminal activity for which there is no other reasonable, appropriate remedy;
- Whether a proposal addresses a crime which is directly dangerous to the physical safety of others for which there is no other reasonably appropriate sanction;
- Whether a proposal corrects a constitutional problem or legislative drafting error; and
- Whether a proposal proposes penalties which are proportionate, and cannot be achieved through any other reasonably appropriate remedy.
COMMENTS
1. Need for the bill
According to the author:
Recently in California a pilot flying a helicopter with seven firefighters on board who were battling a blaze threatening nearby homes, saw a four-rotor drone only 10 feet from his windshield. This forced him to make a hard left to avoid a collision about 500 feet above ground. In another incident, the sighting of five drones in the area of a wildfire that closed Interstate 15 in Southern California and destroyed numerous vehicles, grounded air tanker crews for 20 minutes as flames spread.
The unregulated and irresponsible use of drones is placing Californians, our firefighters and emergency response personnel in increasing danger.
The existing Penal Code section dealing with interfering with police, fire and EMTs does not specifically state that the crime can be committed by using a drone. By clarifying existing law, police, fire and EMTs will be able to tell drone operators that the use of an unmanned aircraft that interferes with their official activities is a crime and that they must discontinue their use or face being charged.
Unmanned aircraft or the use of a drone is an emerging industry and technology that is rapidly gaining in popularity. The sheer numbers of drones is creating problems and concerns about how and where they should be used and it is only now that they are being regulated by the FAA. AB 1680 recognizes the fact that drones will need additional federal and state regulation but takes a common sense intermediate approach to doing so.
Last year the Joint Legislative Committee on Emergency management and the Senate Judiciary Committee held a hearing on drones in California. While the use of drones has been presenting increasing numbers of problems and difficulties, many of those testifying recommended moving slowly to see what the Federal Aviation Administration’s response would be in regulating unmanned aerial vehicles.
AB 1680 is a modest step in ensuring that drones do not interfere with law enforcement, fire fighters and emergency personnel.
2. Care Options for Children of Incarcerated Parents
Parental incarceration can be traumatic for children, and it can have damaging impacts on a child's education, health, and social relationships. For children who do not have another parent at home, being placed with a relative is often the most stable option, allowing a child to maintain relationships and, ideally, to live at or near his or her home and attend his or her regular school.
For a parent who is sentenced to prison and who is the sole guardian, options exist for formalizing the relationship between a chosen caregiver and a parent's child(ren). These can include more informal arrangements, such as completing a Caregiver’s Authorization Affidavit, which is a two-page form that an authorized relative can sign which allows a qualified relative to enroll a child in school and agree to school-related medical care for the child. This option does not give a caregiver legal custody over a child. Another option is to grant Power of Attorney to a caregiver, which authorizes an individual to act as a caregiver for a child, and to make decisions regarding the child on behalf of parent. More formal options could also be sought, including legal guardianship, whereby the court may appoint an individual to have custody of a child indefinitely. Legal guardianship does not terminate a parent’s rights, but suspends them. These, and other, options each come with various benefits and drawbacks, depending on the circumstances, and parents need to consider their family's particular needs and situation when deciding which, if any, option to pursue.
3. TrustLine
TrustLine, created by the California Legislature in the 1980s, is a registry of license-exempt child care providers who have cleared a criminal background check run by the Department of Social Services that includes a check of the Child Abuse Central Index (CACI) administered by the Attorney General and the California Department of Justice’s California Criminal History System, and can involve a check of criminal history records at the Federal Bureau of Investigation. Child care providers listed on TrustLine do not have either of the following: disqualifying criminal convictions or substantiated reports of child abuse found on CACI. AB Applicants for the registry must complete a form, submit fingerprints, and pay a one-time fee to DSS. Fees can vary, and start at approximately $135. Parents are able to check if an individual is listed on the registry by calling a toll-free number.
4. Arraignment
The arraignment is the defendant's first court appearance. At this time, the defendant is informed of the nature of the charges, is given a copy of the accusatory pleading, and also given an opportunity to enter a plea. (Penal Code § 988.) At this time judge or magistrate also advises the defendant of the right to counsel and the right to a court appointed attorney, if he or she is indigent.
At arraignment, this bill would also have the judge at provide a defendant who is the sole custodial parent of one or more minor children: a Judicial Council from called the “Guardianship Pamphlet”; Information regarding a Power of Attorney for a minor child; and information regarding trustline background examinations.
-- END –
ASSEMBLY THIRD READING
ATR Bill Id:AB 2380
Author:(Alejo)
As Amended Ver:April 18, 2016
Majority vote
Committee | Votes | Ayes | Noes |
Human Services | 7-0 | Bonilla, Grove, Calderon, Lopez, Maienschein, Mark Stone, Thurmond | |
Public Safety | 7-0 | Jones-Sawyer, Melendez, Lackey, Lopez, Low, Quirk, Santiago |
SUMMARY: Requires the court to provide a defendant who is charged with a felony and who is the sole custodial parent of one or more minor children with: a Judicial Council form on guardianship, information regarding Power of Attorney for a minor child, and information regarding TrustLine background examinations, as specified.
EXISTING LAW directs the Department of Social Services (DSS) to establish and continuously update a TrustLine registry containing information on license-exempt child care providers who have submitted TrustLine background-check information and who have undergone the specified background check. (Health and Safety Code (HSC) Section 1596.60 et seq.)
FISCAL EFFECT: Unknown. This bill is keyed non-fiscal by the Legislative Counsel.
COMMENTS:
Care options for children of incarcerated parents: Research indicates that parental incarceration can be more traumatic for children than a parent's death or divorce, and it can have damaging impacts on a child's education, health, and social relationships. For children who don't have another parent at home, being placed with a relative is often the most stable option, allowing a child to maintain relationships and, ideally, to live at or near his or her home and attend his or her regular school.
For a parent who is sentenced to prison and who is the sole guardian, options exist for formalizing the relationship between a chosen caregiver and a parent's child(ren). These can include more informal arrangements, such as completing a Caregiver's Authorization Affidavit, which is a two-page form that an authorized relative can sign which allows a qualified relative to enroll a child in school and agree to school-related medical care for the child. This option does not give a caregiver legal custody over a child. Another option is to grant Power of Attorney to a caregiver, which authorizes an individual to act as a caregiver for a child, and to make decisions regarding the child on behalf of parent. More formal options could also be sought, including legal guardianship, whereby the court may appoint an individual to have custody of a child indefinitely. Legal guardianship does not terminate a parent's rights, but suspends them. These, and other, options each come with various benefits and drawbacks, depending on the circumstances, and parents need to consider their family's particular needs and situation when deciding which, if any, option to pursue.
TrustLine: TrustLine, created by the California Legislature in the 1980s, is a registry of license-exempt child care providers who have cleared a criminal background check run by DSS that includes a check of the Child Abuse Central Index (CACI) administered by the Attorney General and the California Department of Justice's California Criminal History System, and can involve a check of criminal history records at the Federal Bureau of Investigation. Child care providers listed on TrustLine do not have either of the following: disqualifying criminal convictions or substantiated reports of child abuse found on CACI. Applicants for the registry must complete a form, submit fingerprints, and pay a one-time fee to DSS. Fees can vary, and start at approximately $135. Parents are able to check if an individual is listed on the registry by calling a toll-free number.
Need for this bill: According to the author, "I authored this legislation in response to the recent tragic killing of two young children and the brutal torture of their sister from East Salinas who had been placed in the custody of their aunt after their only living parent was sent to prison. Ensuring the health and safety of our children is one of the most essential roles of government. Our system failed these children. This bill requires the court, at the arraignment of a parent who is charged with a felony and who is the sole guardian of his or her child, to provide that parent with information on options regarding the provision of care for his or her child, in the parent's absence, including: ways in which to formalize the relationship with the person with whom he/she is entrusting the care of his/her child (such as appointing power of attorney), and the availability of services to research a potential caretaker's background."
Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089 FN: 0002847
Date of Hearing: April 19, 2016
Counsel: Sandra Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
ABPCA Bill Id:AB 2380
Author:(Alejo) – As Amended Ver:
SUMMARY:
Requires the court, at the arraignment of a defendant charged with a felony who is the sole custodial parent of a minor child, to provide specified information on options regarding the care of the child. Specifically, this bill:
- Requires the court, at the arraignment of a defendant charged with a felony and who is the sole custodial parent of one or more minor children, to provide the following to the defendant:
- The "guardianship pamphlet" prepared by the Judicial Council, as specified;
- Information regarding a power of attorney for a minor child; and,
- Information regarding trustline background examinations pertaining to childcare providers, as specified.
- The "guardianship pamphlet" prepared by the Judicial Council, as specified;
EXISTING LAW:
- States that the arraignment consists of reading the accusatory pleading to the defendant, providing the defendant a copy of the accusatory pleading, and asking the defendant whether he or she pleads guilty or not guilty to the accusatory pleading. (Pen. Code, § 988.)
- States that if the defendant appears at arraignment without counsel, the court shall inform defendant of the right to counsel being arraigned, and shall ask the defendant whether he or she desires the assistance of counsel. (Pen. Code, §§ 858, subd. (a) & 987, subd. (a).)
- Requires the court to advise defendants at arraignment that there are special provisions of law applicable to those who have active duty or veteran status, and shall inform the defendant that if he or she is a member of the military or a veteran that he or she may request the Judicial Council form explaining those special rights. (Pen. Code, § 858, subd. (d).)
- Requires, prior to acceptance of a plea of guilty or nolo contendere to any offense punishable as a crime under state law, the court to advise the defendant on the record about the potential immigration consequences of a plea. (Pen. Code, § 1016.5, subd. (a).)
FISCAL EFFECT:
Unknown
COMMENTS:
- Author's Statement: According to the author, "I authored this legislation in response to the recent tragic killing of two young children and the brutal torture of their sister from East Salinas who had been placed in the custody of their aunt after their only living parent was sent to prison. Ensuring the health and safety of our children is one of the most essential roles of government. Our system failed these children. This bill requires the court, at the arraignment of a parent who is charged with a felony and who is the sole guardian of his or her child, to provide that parent with information on options regarding the provision of care for his or her child, in the parent’s absence, including: ways in which to formalize the relationship with the person with whom he/she is entrusting the care of his/her child (such as appointing power of attorney), and the availability of services to research a potential caretaker’s background."
- Care Options for Children of Incarcerated Parents: Parental incarceration can be traumatic for children, and it can have damaging impacts on a child's education, health, and social relationships. For children who do not have another parent at home, being placed with a relative is often the most stable option, allowing a child to maintain relationships and, ideally, to live at or near his or her home and attend his or her regular school.
For a parent who is sentenced to prison and who is the sole guardian, options exist for formalizing the relationship between a chosen caregiver and a parent's child(ren). These can include more informal arrangements, such as completing a Caregiver’s Authorization Affidavit, which is a two-page form that an authorized relative can sign which allows a qualified relative to enroll a child in school and agree to school-related medical care for the child. This option does not give a caregiver legal custody over a child. Another option is to grant Power of Attorney to a caregiver, which authorizes an individual to act as a caregiver for a child, and to make decisions regarding the child on behalf of parent. More formal options could also be sought, including legal guardianship, whereby the court may appoint an individual to have custody of a child indefinitely. Legal guardianship does not terminate a parent’s rights, but suspends them. These, and other, options each come with various benefits and drawbacks, depending on the circumstances, and parents need to consider their family's particular needs and situation when deciding which, if any, option to pursue. - Arraignment: The arraignment is the defendant's first court appearance. At this time, the defendant is informed of the nature of the charges, is given a copy of the accusatory pleading, and also given an opportunity to enter a plea. (Pen. Code, § 988.) At this time judge or magistrate also advises the defendant of the right to counsel and the right to a court-appointed attorney, if he or she is indigent.
- TrustLine: TrustLine, created by the California Legislature in the 1980s, is a registry of license-exempt child care providers who have cleared a criminal background check run by the Department of Social Services that includes a check of the Child Abuse Central Index (CACI) administered by the Attorney General and the California Department of Justice’s California Criminal History System, and can involve a check of criminal history records at the Federal Bureau of Investigation. Child care providers listed on TrustLine do not have either of the following: disqualifying criminal convictions or substantiated reports of child abuse found on CACI.
Applicants for the registry must complete a form, submit fingerprints, and pay a one-time fee to DSS. Fees can vary, and start at approximately $135. Parents are able to check if an individual is listed on the registry by calling a toll-free number. - Prior Legislation: AB 267 (Jones-Sawyer), of the 2015-2016 Legislative session, would have required the court at the time of entry of plea to advise the defendant that conviction of a felony results in various consequences. AB 267 was vetoed.
REGISTERED SUPPORT / OPPOSITION:
Support
None
Opposition
None
Analysis Prepared by:
Sandy Uribe / PUB. S. / (916) 319-3744
Date of Hearing: April 12, 2016
ASSEMBLY COMMITTEE ON HUMAN SERVICES
Susan Bonilla, Chair
ABPCA Bill Id:AB 2380 (
Author:Alejo) – As Amended Ver:March 31, 2016
SUBJECT: Informal caregivers: background checks
SUMMARY: Requires caregivers who have assumed responsibility for the children of incarcerated parents to obtain a criminal records clearance.
Specifically, this bill:
- Defines “informal caregiver” to mean a person who has assumed responsibility for the care and custody of a child, without the involvement of the court, child protective services agency, or other governmental agency.
- Requires an informal caregiver who is not the adult sibling of a child and who began providing care for a child on or after January 1, 2017, and who has been designated as the caregiver by a parent who has been convicted of a felony and sentenced to imprisonment for a least one year, to obtain a criminal records clearance or exemption from the Department of Social Services (DSS) for each adult residing in, or regularly present in, the home, as specified.
- Requires a child to be removed from the custody of the informal caregiver if he or she is found to have committed an offense for which DSS may not issue a criminal records clearance or exemption.
- Requires the court, when it sentences an individual to a term of imprisonment of one year or more, to inform that individual that any informal caregiver he or she designates to care for his or her minor child may be subject to the requirement to obtain a criminal records clearance or exemption, as specified.
EXISTING LAW:
- Provides for criminal record check requirements, processes, and exemptions for applicants for community care facility licenses, and other specified individuals operating or providing direct care services at community care facilities. (HSC 1522)
FISCAL EFFECT: Unknown.
COMMENTS:
Care options for children of incarcerated parents: Research indicates that parental incarceration can be more traumatic for children than a parent’s death or divorce, and it can have damaging impacts on a child’s education, health, and social relationships. For children who don’t have another parent at home, being placed with a relative is often the most stable option, allowing a child to maintain relationships and, ideally, to live at or near his or her home and attend his or her regular school.
For a parent who is sentenced to prison and who is the sole guardian, options exist for formalizing the relationship between a chosen caregiver and a parent’s child(ren). These can include more informal arrangements, such as completing a Caregiver’s Authorization Affidavit, which is a two-page form that an authorized relative can sign which allows a qualified relative to enroll a child in school and agree to school-related medical care for the child. This option does not give a caregiver legal custody over a child. Another option is to grant Power of Attorney to a caregiver, which authorizes an individual to act as a caregiver for a child, and to make decisions regarding the child on behalf of parent. More formal options could also be sought, including legal guardianship, whereby the court may appoint an individual to have custody of a child indefinitely. Legal guardianship does not terminate a parent’s rights, but suspends them. These, and other, options each come with various benefits and drawbacks, depending on the circumstances, and parents need to consider their family’s particular needs and situation when deciding which, if any, option to pursue.
Need for this bill: According to the author, “I authored this legislation in response to the recent tragic killing of two young children and the brutal torture of their sister from East Salinas who had been placed in the custody of their aunt after their only living parent was sent to prison. Ensuring the health and safety of our children is one of the most essential roles of government. Our system failed these children. This bill makes it law that when the only remaining parent of a child or children is incarcerated for a lengthy period, a simple background check of the person the parent has chosen to care for children will be required and other procedural safeguards are followed.”
Writing in support of the bill, the Monterey County Office of the District Attorney states that, “this bill makes it law that when the only remaining parent of a child or children is incarcerated for a lengthy period, a simple background check of the person the parent has chosen to care for children will be required along with other procedural safeguards that may need to be followed.”
Opposition: Organizations writing in opposition to this bill question the constitutionality of the proposal at hand, and point to potential and widespread unintentional consequences for many children and families, particularly those of color. Questions are also raised about the ability to implement the bill as written.
Children’s Law Center of California writes:
“We understand that the intention of [this bill] is to protect the safety of children, but we are concerned that the bill will have unintended negative consequences, and may also be unconstitutional.
First, the bill creates significant costs and logistical challenges. Currently, the state Department of Social Services conducts criminal background checks, and determines whether to grant exemptions to applicants with criminal history, for persons who apply to become licensed child care providers, foster parents, or adoptive parents. The criminal background check is conducted as part of an overall licensing evaluation process, and the necessary forms and procedures are provided and explained to applicants by the licensing agency. How would informal caregivers access this system? They are not licensure applicants, and are not connected to any local or state agency that could provide the necessary forms and guide them through the process. [This bill] would require the creation of a new and expensive infrastructure to provide access to criminal background checks for informal caregivers.
Second, the bill provides that if an informal caregiver is found to have criminal history for which an exemption cannot be granted, the child “shall be removed” from the caregiver. Who would remove the child, and what would happen next? Implementing this provision would create a parallel child welfare system. This would be a substantial departure from current California law, which allows county child welfare agencies to intervene and remove a child only when there has been a substantiated report of parental abuse or neglect. A parent’s choice of an informal caregiver who (perhaps unknown to the parent) has committed a serious crime many years ago, is not, by itself, child abuse or neglect. So, [this bill] would expand the scope of county child welfare agency intervention in a way that conflicts with current law.
Moreover, [this bill] selectively requires background checks only for informal caregivers of children whose parents were convicted of a felony, and not in any of the myriad other situations in which parents may allow a relative or family friend to care for their children --- such as a parent’s illness or disability, military deployment, or a desire to give the child access to a better neighborhood or school. This raises both practical and constitutional problems…singling out incarcerated parents in creating restrictions on a parent’s right to make decisions concerning where and with whom their children live, and lowering the threshold for child welfare agency intervention and removal of these children, raise serious constitutional questions.”
Youth Law Center writes:
“We are concerned that the policy contained in this bill will disproportionately negatively impact Black and Latino children by disrupting families, interfering with parental autonomy and family integrity, and forcing massive numbers of children of color into an already overburdened foster care system. Allowing parents to immediately establish informal caregiving arrangements for their children when incarcerated provides a critical way of ensuring stability and familiarity for children without unnecessarily involving child welfare…This bill draws a blanket nexus between a conviction of any felony and the needed parental judgment to determine an informal kin caregiver’s ability to be a good parent, when no such correlation exists. Additionally, there is no data to support that the criminal record clearance that would be required of informal caregivers would have any connection to whether children will be safer. It is well established that systemic racial, class and economic inequalities result in crime and prison policy that disproportionately impacts Black and Latino families. Additionally, Black and Latino families heavily rely on informal kinship care arrangements to keep children out of foster care and the potential trauma of placement with strangers. Thus, this bill will have the greatest impact on children and families of color.”
Staff comments: This bill raises a number of policy and operational concerns. These include the following:
- Potential infringement on parents’ rights and questions of constitutionality.
- Likelihood of disproportionate impact on communities of color.
- Unsubstantiated correlations between: a) a parent being convicted of a crime and his or her inability to make good decisions about, and have access to, quality care for his or her child(ren), and b) one’s criminal history and his or her inability to provide care that ensures the health and safety of a child.
- Various implementation concerns, including, but not limited to: lack of clarity of administrative roles and responsibilities; unclear lines of communication, oversight, and enforcement; reference to background clearance language in State Code that does not apply to the proposed situation at hand; lack of direction as to how and by when background clearances should be obtained; and others.
Suggested amendments: To address the concerns raised above, committee staff recommends the following amendments:
- Strike lines 1 through 22 on page 2, and pages 3 through 12 of the bill.
- Add language to require the court, at the arraignment of a parent who is charged with a felony and who is the sole guardian of his or her child(ren), to provide that parent with information on options regarding the provision of care for his or her child(ren) in the parent’s absence, including: ways in which to formalize the relationship with the person with whom he/she is entrusting the care of his/her child(ren) (such as appointing power of attorney), and the availability services to research a potential caretaker’s background.
DOUBLE REFERRAL. This bill has been double-referred. Should this bill pass out of this committee, it will be referred to the Assembly Committee on Public Safety.
REGISTERED SUPPORT / OPPOSITION:
Support
Monterey County District Attorney’s Office
Peace Officers Research Association of CA (PORAC)
Opposition
Children’s Law Center of California (CLC)
Legal Services for Prisoners with Children (LSPC)
Youth Law Center
Analysis Prepared by: Daphne Hunt / HUM. S. / (916) 319-2089
Discussed in Hearing
5MIN
Senate Standing Committee on Natural Resources and Water
1MIN
Assembly Floor
2MIN
Senate Standing Committee on Public Safety
2MIN
Assembly Floor
9MIN
Assembly Standing Committee on Human Services
Bill Author
Bill Co-Author(s):