SB 6: Parole: medical parole: compassionate release.
- Session Year: 2015-2016
- House: Senate
- Latest Version Date: 2016-09-30
Existing law provides that the Board of Parole Hearings or its successor in interest shall be the states parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions.
This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the first-degree murder of a peace officer or a person who had been a peace officer, as provided.
Existing law provides that the Board of Parole Hearings or its successor in interest shall be the states parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions.
This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the first-degree murder of a peace officer or a person who had been a peace officer, as provided.
Existing law provides that the Board of Parole Hearings or its successor in interest shall be the states parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions.
This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the first-degree murder of a peace officer or a person who had been a peace officer, as provided.
Existing law provides that the Board of Parole Hearings or its successor in interest shall be the states parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions.
This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the first-degree murder of a peace officer or a person who had been a peace officer, as provided.
Existing law provides that the Board of Parole Hearings or its successor in interest shall be the states parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions.
This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the first degree first-degree murder of a peace officer or a person who had been a peace officer, as provided.
Existing law provides that the Board of Parole Hearings or its successor in interest shall be the states parole authority. Existing law requires that a prisoner who is found to be permanently medically incapacitated, as specified, be granted medical parole, if the Board of Parole Hearings determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. Existing law exempts a prisoner sentenced to death, a prisoner sentenced to life without the possibility of parole, and a prisoner who is serving a sentence for which parole is prohibited by initiative statute, from medical parole eligibility.
Existing law authorizes a court to resentence or recall the sentence of a prisoner if the court finds that the prisoner is terminally ill, as specified, or the prisoner is permanently medically incapacitated, as specified, and, in either case, the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. Existing law exempts a prisoner sentenced to death or a term of life without the possibility of parole from eligibility for compassionate release pursuant to these provisions.
This bill would additionally exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the first degree murder of a peace officer or a person who had been a peace officer, as provided.
A prisoner is not eligible for resentence or recall pursuant to subdivision (e) of Section 1170 if he or she was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
SEC. 2.Section 3550 of the Penal Code is amended to read:3550.(a)Notwithstanding any other law, except as provided in subdivision (b), if the head physician of an institution in which a prisoner is incarcerated determines, as provided in this section, that the prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, the prisoner shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which he or she would be released would not reasonably pose a threat to public safety.
(b)This section does not alter or diminish the rights conferred under the Victims Bill of Rights Act of 2008 (Marsys Law). Subdivision (a) does not apply to any of the following:
(1)A prisoner sentenced to death or life in prison without possibility of parole.
(2)A prisoner who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute.
(3)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(c)When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for a prisoner identifies a prisoner that he or she believes meets the medical criteria for medical parole specified in subdivision (a), the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
(d)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for medical parole by contacting the head physician at the prison or the department. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoners primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (a) and, if the head physician of the institution determines that the prisoner satisfies the criteria set forth in subdivision (a), he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
(e)The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmates plan for residency and medical care.
(f)Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
(g)Upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole pursuant to subdivision (c) or (d), the board, as specified in subdivision (f), shall make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
(h)Notwithstanding any other law, the board or the Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (a), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (a), the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolees current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the persons medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
(1)Notwithstanding any other law establishing maximum periods for parole, a prisoner sentenced to a determinate term who is placed on medical parole supervision prior to the earliest possible release date and who remains eligible for medical parole, shall remain on medical parole, pursuant to subdivision (a), until that earliest possible release date, at which time the parolee shall commence serving that period of parole provided by, and under the provisions of, Chapter 8 (commencing with Section 3000) of Title 1.
(2)Notwithstanding any other law establishing maximum periods for parole, a prisoner sentenced to an indeterminate term who is placed on medical parole supervision prior to the prisoners minimum eligible parole date, and who remains eligible for medical parole, shall remain on medical parole pursuant to subdivision (a) until that minimum eligible parole date, at which time the parolee shall be eligible for parole consideration under all other provisions of Chapter 8 (commencing with Section 3000) of Title 1.
(i)The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (a), ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoners forwarding address after release to health care-related parole supervision.
(j)The provisions for medical parole set forth in this title shall not affect an inmates eligibility for any other form of parole or release provided by law.
(k)(1)Notwithstanding any other law, the Department of Corrections and Rehabilitation shall give notice to the county of commitment and the proposed county of release, if that county is different than the county of commitment, of any medical parole hearing as described in subdivision (f), and of any medical parole release as described in subdivision (g).
(2)Notice shall be made at least 30 days, or as soon as feasible, prior to the time any medical parole hearing or medical parole release is scheduled for an inmate receiving medical parole consideration, regardless of whether the inmate is sentenced either determinately or indeterminately.
A prisoner is not eligible for resentence or recall pursuant to subdivision (e) of Section 1170 if he or she was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
SEC. 2.Section 3550 of the Penal Code is amended to read:3550.(a)Notwithstanding any other law, except as provided in subdivision (b), if the head physician of an institution in which a prisoner is incarcerated determines, as provided in this section, that the prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, the prisoner shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which he or she would be released would not reasonably pose a threat to public safety.
(b)This section does not alter or diminish the rights conferred under the Victims Bill of Rights Act of 2008 (Marsys Law). Subdivision (a) does not apply to any of the following:
(1)A prisoner sentenced to death or life in prison without possibility of parole.
(2)A prisoner who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute.
(3)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(c)When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for a prisoner identifies a prisoner that he or she believes meets the medical criteria for medical parole specified in subdivision (a), the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
(d)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for medical parole by contacting the head physician at the prison or the department. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoners primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (a) and, if the head physician of the institution determines that the prisoner satisfies the criteria set forth in subdivision (a), he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
(e)The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmates plan for residency and medical care.
(f)Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
(g)Upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole pursuant to subdivision (c) or (d), the board, as specified in subdivision (f), shall make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
(h)Notwithstanding any other law, the board or the Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (a), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (a), the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolees current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the persons medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
(1)Notwithstanding any other law establishing maximum periods for parole, a prisoner sentenced to a determinate term who is placed on medical parole supervision prior to the earliest possible release date and who remains eligible for medical parole, shall remain on medical parole, pursuant to subdivision (a), until that earliest possible release date, at which time the parolee shall commence serving that period of parole provided by, and under the provisions of, Chapter 8 (commencing with Section 3000) of Title 1.
(2)Notwithstanding any other law establishing maximum periods for parole, a prisoner sentenced to an indeterminate term who is placed on medical parole supervision prior to the prisoners minimum eligible parole date, and who remains eligible for medical parole, shall remain on medical parole pursuant to subdivision (a) until that minimum eligible parole date, at which time the parolee shall be eligible for parole consideration under all other provisions of Chapter 8 (commencing with Section 3000) of Title 1.
(i)The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (a), ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoners forwarding address after release to health care-related parole supervision.
(j)The provisions for medical parole set forth in this title shall not affect an inmates eligibility for any other form of parole or release provided by law.
(k)(1)Notwithstanding any other law, the Department of Corrections and Rehabilitation shall give notice to the county of commitment and the proposed county of release, if that county is different than the county of commitment, of any medical parole hearing as described in subdivision (f), and of any medical parole release as described in subdivision (g).
(2)Notice shall be made at least 30 days, or as soon as feasible, prior to the time any medical parole hearing or medical parole release is scheduled for an inmate receiving medical parole consideration, regardless of whether the inmate is sentenced either determinately or indeterminately.
(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison or a term pursuant to subdivision (h) of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other law is equal to or exceeds any sentence imposed pursuant to this chapter, except for the remaining portion of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or to the custody of the county correctional administrator. The court shall advise the defendant that he or she shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision, and order the defendant to report to the parole or probation office closest to the 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 choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation 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 select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
(c)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the 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)(A)The court shall have the discretion to resentence or recall if the court finds that the facts described in clauses (i) and (ii) or clauses (ii) and (iii) exist:
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(C)The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the 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 that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the 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 remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.
SEC. 2.Section 1170 of the Penal Code, as amended by Section 2 of Chapter 378 of the Statutes of 2015, is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that he or she shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation office closest to the 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)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the 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)(A)The court shall have the discretion to resentence or recall if the court finds that the facts described in clauses (i) and (ii) or clauses (ii) and (iii) exist:
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(C)The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the 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.
SECTION 1.Section 1170.02 is added to the Penal Code, to read:1170.02.A prisoner is not eligible for resentence or recall pursuant to subdivision (e) of Section 1170 if he or she was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
SEC. 3.SEC. 2.Section 3550 of the Penal Code is amended to read:3550.(a)Notwithstanding any other law, except as provided in subdivision (b), if the head physician of an institution in which a prisoner is incarcerated determines, as provided in this section, that the prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, the prisoner shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which he or she would be released would not reasonably pose a threat to public safety.
(b)This section does not alter or diminish the rights conferred under the Victims Bill of Rights Act of 2008 (Marsys Law). Subdivision (a) does not apply to any of the following:
(1)A prisoner sentenced to death or life in prison without possibility of parole.
(2)A prisoner who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute.
(3)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(c)When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for a prisoner identifies a prisoner that he or she believes meets the medical criteria for medical parole specified in subdivision (a), the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
(d)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for medical parole by contacting the head physician at the prison or the department. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoners primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (a) and, if the head physician of the institution determines that the prisoner satisfies the criteria set forth in subdivision (a), he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
(e)The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmates plan for residency and medical care.
(f)Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
(g)Upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole pursuant to subdivision (c) or (d), the board, as specified in subdivision (f), shall make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
(h)Notwithstanding any other law, the board or the Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (a), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (a), the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolees current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the persons medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
(1)Notwithstanding any other law establishing maximum periods for parole, a prisoner sentenced to a determinate term who is placed on medical parole supervision prior to the earliest possible release date and who remains eligible for medical parole, shall remain on medical parole, pursuant to subdivision (a), until that earliest possible release date, at which time the parolee shall commence serving that period of parole provided by, and under the provisions of, Chapter 8 (commencing with Section 3000) of Title 1.
(2)Notwithstanding any other law establishing maximum periods for parole, a prisoner sentenced to an indeterminate term who is placed on medical parole supervision prior to the prisoners minimum eligible parole date, and who remains eligible for medical parole, shall remain on medical parole pursuant to subdivision (a) until that minimum eligible parole date, at which time the parolee shall be eligible for parole consideration under all other provisions of Chapter 8 (commencing with Section 3000) of Title 1.
(i)The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (a), ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoners forwarding address after release to health care-related parole supervision.
(j)The provisions for medical parole set forth in this title shall not affect an inmates eligibility for any other form of parole or release provided by law.
(k)(1)Notwithstanding any other law, the Department of Corrections and Rehabilitation shall give notice to the county of commitment and the proposed county of release, if that county is different than the county of commitment, of any medical parole hearing as described in subdivision (f), and of any medical parole release as described in subdivision (g).
(2)Notice shall be made at least 30 days, or as soon as feasible, prior to the time any medical parole hearing or medical parole release is scheduled for an inmate receiving medical parole consideration, regardless of whether the inmate is sentenced either determinately or indeterminately.
(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison or a term pursuant to subdivision (h) of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other law is equal to or exceeds any sentence imposed pursuant to this chapter, except for the remaining portion of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or to the custody of the county correctional administrator. The court shall advise the defendant that he or she shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision, and order the defendant to report to the parole or probation office closest to the 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 choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation 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 select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
(c)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the 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)(A)The court shall have the discretion to resentence or recall if the court finds that the facts described in clauses (i) and (ii) or clauses (ii) and (iii) exist:
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(C)The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the 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 that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the 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 remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.
SEC. 2.Section 1170 of the Penal Code, as amended by Section 2 of Chapter 378 of the Statutes of 2015, is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that he or she shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation office closest to the 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)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the 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)(A)The court shall have the discretion to resentence or recall if the court finds that the facts described in clauses (i) and (ii) or clauses (ii) and (iii) exist:
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(C)The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the 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.Section 3550 of the Penal Code is amended to read:3550.(a)Notwithstanding any other provision of law, except as provided in subdivision (b), if the head physician of an institution in which a prisoner is incarcerated determines, as provided in this section, that the prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, the prisoner shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which he or she would be released would not reasonably pose a threat to public safety.
(b)This section does not alter or diminish the rights conferred under the Victims Bill of Rights Act of 2008 (Marsys Law). Subdivision (a) does not apply to any of the following:
(1)A prisoner sentenced to death or life in prison without possibility of parole.
(2)A prisoner who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute.
(3)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(c)When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for a prisoner identifies a prisoner that he or she believes meets the medical criteria for medical parole specified in subdivision (a), the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
(d)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for medical parole by contacting the head physician at the prison or the department. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoners primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (a) and, if the head physician of the institution determines that the prisoner satisfies the criteria set forth in subdivision (a), he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
(e)The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmates plan for residency and medical care.
(f)Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
(g)Upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole pursuant to subdivision (c) or (d), the board, as specified in subdivision (f), shall make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
(h)Notwithstanding any other provision of law, the board or the Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (a), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (a), the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolees current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the persons medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
(1)Notwithstanding any other provision of law establishing maximum periods for parole, a prisoner sentenced to a determinate term who is placed on medical parole supervision prior to the earliest possible release date and who remains eligible for medical parole, shall remain on medical parole, pursuant to subdivision (a), until that earliest possible release date, at which time the parolee shall commence serving that period of parole provided by, and under the provisions of, Chapter 8 (commencing with Section 3000) of Title 1.
(2)Notwithstanding any other provisions of law establishing maximum periods for parole, a prisoner sentenced to an indeterminate term who is placed on medical parole supervision prior to the prisoners minimum eligible parole date, and who remains eligible for medical parole, shall remain on medical parole pursuant to subdivision (a) until that minimum eligible parole date, at which time the parolee shall be eligible for parole consideration under all other provisions of Chapter 8 (commencing with Section 3000) of Title 1.
(i)The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (a), ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoners forwarding address after release to health care-related parole supervision.
(j)The provisions for medical parole set forth in this title shall not affect an inmates eligibility for any other form of parole or release provided by law.
(k)(1)Notwithstanding any other provision of law, the Department of Corrections and Rehabilitation shall give notice to the county of commitment and the proposed county of release, if that county is different than the county of commitment, of any medical parole hearing as described in subdivision (f), and of any medical parole release as described in subdivision (g).
(2)Notice shall be made at least 30 days, or as soon as feasible, prior to the time any medical parole hearing or medical parole release is scheduled for an inmate receiving medical parole consideration, regardless of whether the inmate is sentenced either determinately or indeterminately.
(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in 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, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendants last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation 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 select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
(c)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(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)(A)The court shall have the discretion to resentence or recall if the court finds that the facts described in clauses (i) and (ii) or clauses (ii) and (iii) exist:
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)(I) A prisoner who was convicted of first degree murder if the victim was a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
(II)The victim was a peace officer or had been a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, and was intentionally murdered in retaliation for the performance of his or her official duties, and the defendant was sentenced on or after January 1, 2016.
(C)The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the 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 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.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), any allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because he or she is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to state prison for a determinate term for which only one term is specified, is a sentence to state prison under this section.
(h)(1)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
(2)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense.
(3)Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.
(4)Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1.
(5)(A)Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the 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 such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision.
(6) The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that added this paragraph shall become effective and operative on January 1, 2015, and shall be applied prospectively to any person sentenced on or after January 1, 2015.
(i)This section shall remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.
SEC. 2.Section 1170 of the Penal Code, as amended by Section 2 of Chapter 612 of the Statutes of 2014, is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in 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, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendants last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation 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)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(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)(A)The court shall have the discretion to resentence or recall if the court finds that the facts described in clauses (i) and (ii) or clauses (ii) and (iii) exist:
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)(I)A prisoner who was convicted of first degree murder if the victim was a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
(II)The victim was a peace officer or had been a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, and was intentionally murdered in retaliation for the performance of his or her official duties, and the defendant was sentenced on or after January 1, 2016.
(C)The Board of Parole Hearings shall make findings pursuant to this subdivision before making a recommendation for resentence or recall to the court.
(3)Within 10 days of receipt of a positive recommendation by the secretary or the board, the court shall hold a hearing to consider whether the 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 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.
(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 such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision.
(6)The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011.
(7)The sentencing changes made to paragraph (5) by the act that added this paragraph shall become effective and operative on January 1, 2015, and shall be applied prospectively to any person sentenced on or after January 1, 2015.
(i)This section shall become operative on January 1, 2017.
SECTION 1.Section 1170 of the Penal Code, as amended by Section 1 of Chapter 378 of the Statutes of 2015, is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison or a term pursuant to subdivision (h) of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other law is equal to or exceeds any sentence imposed pursuant to this chapter, except for the remaining portion of mandatory supervision pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or to the custody of the county correctional administrator. The court shall advise the defendant that he or she shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision, and order the defendant to report to the parole or probation office closest to the 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 choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation 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 select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
(c)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the 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)(A)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) clauses (i) and (ii) or clauses (ii) and (iii) exist:
(A)
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(B)
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(C)
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
The
(C)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 that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the 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 remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.
SEC. 2.Section 1170 of the Penal Code, as amended by Section 2 of Chapter 378 of the Statutes of 2015, is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison, or a term pursuant to subdivision (h), of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in paragraph (2) of subdivision (d). In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, except for a remaining portion of mandatory supervision imposed pursuant to subparagraph (B) of paragraph (5) of subdivision (h), the entire sentence shall be deemed to have been served, except for the remaining period of mandatory supervision, and the defendant shall not be actually delivered to the custody of the secretary or the county correctional administrator. The court shall advise the defendant that he or she shall serve an applicable period of parole, postrelease community supervision, or mandatory supervision and order the defendant to report to the parole or probation office closest to the 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)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000 or 3000.08 or postrelease community supervision for a period as provided in Section 3451.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison or county jail pursuant to subdivision (h) and has been committed to the custody of the secretary or the county correctional administrator, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings in the case of state prison inmates, or the county correctional administrator in the case of county jail inmates, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(2)(A)(i)When a defendant who was under 18 years of age at the time of the commission of the offense for which the defendant was sentenced to imprisonment for life without the possibility of parole has served at least 15 years of that sentence, the defendant may submit to the sentencing court a petition for recall and resentencing.
(ii)Notwithstanding clause (i), this paragraph shall not apply to defendants sentenced to life without parole for an offense where the defendant tortured, as described in Section 206, his or her victim or the victim was a public safety official, including any law enforcement personnel mentioned in Chapter 4.5 (commencing with Section 830) of Title 3, or any firefighter as described in Section 245.1, as well as any other officer in any segment of law enforcement who is employed by the federal government, the state, or any of its political subdivisions.
(B)The defendant shall file the original petition with the sentencing court. A copy of the petition shall be served on the agency that prosecuted the case. The petition shall include the 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)(A)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) clauses (i) and (ii) or clauses (ii) and (iii) exist:
(A)
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(B)
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(C)
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)A prisoner who was convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
The
(C)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.Section 3550 of the Penal Code is amended to read:3550.(a)Notwithstanding any other provision of law, except as provided in subdivision (b), if the head physician of an institution in which a prisoner is incarcerated determines, as provided in this section, that the prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, the prisoner shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which he or she would be released would not reasonably pose a threat to public safety.
(b)This section does not alter or diminish the rights conferred under the Victims Bill of Rights Act of 2008 (Marsys Law). Subdivision (a) does not apply to any of the following:
(1)A prisoner sentenced to death or life in prison without possibility of parole.
(2)A prisoner who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute.
(3)(A)A prisoner who was convicted of first degree first-degree murder if the victim was a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties. duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of his or her official duties.
(B)The victim was a peace officer or had been a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, and was intentionally murdered in retaliation for the performance of his or her official duties, and the defendant was sentenced on or after January 1, 2016.
(c)When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for a prisoner identifies a prisoner that he or she believes meets the medical criteria for medical parole specified in subdivision (a), the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
(d)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for medical parole by contacting the head physician at the prison or the department. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoners primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (a) and, if the head physician of the institution determines that the prisoner satisfies the criteria set forth in subdivision (a), he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
(e)The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmates plan for residency and medical care.
(f)Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
(g)Upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole pursuant to subdivision (c) or (d), the board, as specified in subdivision (f), shall make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
(h)Notwithstanding any other provision of law, the board or the Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (a), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (a), the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolees current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the persons medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
(1)Notwithstanding any other provision of law establishing maximum periods for parole, a prisoner sentenced to a determinate term who is placed on medical parole supervision prior to the earliest possible release date and who remains eligible for medical parole, shall remain on medical parole, pursuant to subdivision (a), until that earliest possible release date, at which time the parolee shall commence serving that period of parole provided by, and under the provisions of, Chapter 8 (commencing with Section 3000) of Title 1.
(2)Notwithstanding any other provisions of law establishing maximum periods for parole, a prisoner sentenced to an indeterminate term who is placed on medical parole supervision prior to the prisoners minimum eligible parole date, and who remains eligible for medical parole, shall remain on medical parole pursuant to subdivision (a) until that minimum eligible parole date, at which time the parolee shall be eligible for parole consideration under all other provisions of Chapter 8 (commencing with Section 3000) of Title 1.
(i)The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (a), ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoners forwarding address after release to health care-related parole supervision.
(j)The provisions for medical parole set forth in this title shall not affect an inmates eligibility for any other form of parole or release provided by law.
(k)(1)Notwithstanding any other provision of law, the Department of Corrections and Rehabilitation shall give notice to the county of commitment and the proposed county of release, if that county is different than the county of commitment, of any medical parole hearing as described in subdivision (f), and of any medical parole release as described in subdivision (g).
(2)Notice shall be made at least 30 days, or as soon as feasible, prior to the time any medical parole hearing or medical parole release is scheduled for an inmate receiving medical parole consideration, regardless of whether the inmate is sentenced either determinately or indeterminately.
(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in 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, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendants last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation. In determining the appropriate term, the court may consider the record in the case, the probation 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 select the term which, in the courts discretion, best serves the interests of justice. The court shall set forth on the record the reasons for imposing the term selected and the court may not impose an upper term by using the fact of any enhancement upon which sentence is imposed under any provision of law. A term of imprisonment shall not be specified if imposition of sentence is suspended.
(c)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(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)(A)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) clauses (i) and (ii) or clauses (ii) and (iii) exist:
(A)
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(B)
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(C)
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)(I) A prisoner who was convicted of first degree murder if the victim was a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
(II)The victim was a peace officer or had been a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, and was intentionally murdered in retaliation for the performance of his or her official duties, and the defendant was sentenced on or after January 1, 2016.
The
(C)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 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.
(f)Notwithstanding any other provision of this section, for purposes of paragraph (3) of subdivision (h), any allegation that a defendant is eligible for state prison due to a prior or current conviction, sentence enhancement, or because he or she is required to register as a sex offender shall not be subject to dismissal pursuant to Section 1385.
(g)A sentence to state prison for a determinate term for which only one term is specified, is a sentence to state prison under this section.
(h)(1)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision where the term is not specified in the underlying offense shall be punishable by a term of imprisonment in a county jail for 16 months, or two or three years.
(2)Except as provided in paragraph (3), a felony punishable pursuant to this subdivision shall be punishable by imprisonment in a county jail for the term described in the underlying offense.
(3)Notwithstanding paragraphs (1) and (2), where the defendant (A) has a prior or current felony conviction for a serious felony described in subdivision (c) of Section 1192.7 or a prior or current conviction for a violent felony described in subdivision (c) of Section 667.5, (B) has a prior felony conviction in another jurisdiction for an offense that has all the elements of a serious felony described in subdivision (c) of Section 1192.7 or a violent felony described in subdivision (c) of Section 667.5, (C) is required to register as a sex offender pursuant to Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1, or (D) is convicted of a crime and as part of the sentence an enhancement pursuant to Section 186.11 is imposed, an executed sentence for a felony punishable pursuant to this subdivision shall be served in state prison.
(4)Nothing in this subdivision shall be construed to prevent other dispositions authorized by law, including pretrial diversion, deferred entry of judgment, or an order granting probation pursuant to Section 1203.1.
(5)(A)Unless the court finds that, in the interests of justice, it is not appropriate in a particular case, the court, when imposing a sentence pursuant to paragraph (1) or (2), shall suspend execution of a concluding portion of the term for a period selected at the 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 such supervision, unless in actual custody related to the sentence imposed by the court, the defendant shall be entitled to only actual time credit against the term of imprisonment imposed by the court. Any time period which is suspended because a person has absconded shall not be credited toward the period of supervision.
(6) The sentencing changes made by the act that added this subdivision shall be applied prospectively to any person sentenced on or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that added this paragraph shall become effective and operative on January 1, 2015, and shall be applied prospectively to any person sentenced on or after January 1, 2015.
(i)This section shall remain in effect only until January 1, 2017, and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date.
SEC. 2.Section 1170 of the Penal Code, as amended by Section 2 of Chapter 612 of the Statutes of 2014, is amended to read:1170.(a)(1)The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion.
(2)Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program.
(3)In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life, except as provided in 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, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the secretary. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendants last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary.
(b)When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation 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)The court shall state the reasons for its sentence choice on the record at the time of sentencing. The court shall also inform the defendant that as part of the sentence after expiration of the term he or she may be on parole for a period as provided in Section 3000.
(d)(1)When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the secretary, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The court resentencing under this subdivision shall apply the sentencing rules of the Judicial Council so as to eliminate disparity of sentences and to promote uniformity of sentencing. Credit shall be given for time served.
(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)(A)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) clauses (i) and (ii) or clauses (ii) and (iii) exist:
(A)
(i)The prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months, as determined by a physician employed by the department.
(B)
(ii)The conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety.
(C)
(iii)The prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour total care, including, but not limited to, coma, persistent vegetative state, brain death, ventilator-dependency, loss of control of muscular or neurological function, and that incapacitation did not exist at the time of the original sentencing.
(B)This subdivision does not apply to the following:
(i)A prisoner sentenced to death or a term of life without the possibility of parole.
(ii)(I)A prisoner who was convicted of first degree murder if the victim was a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
(II)The victim was a peace officer or had been a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, and was intentionally murdered in retaliation for the performance of his or her official duties, and the defendant was sentenced on or after January 1, 2016.
The
(C)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 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.
(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 such 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.Section 3550 of the Penal Code is amended to read:3550.(a)Notwithstanding any other provision of law, except as provided in subdivision (b), any prisoner who if the head physician of the institution where the an institution in which a prisoner is located incarcerated determines, as provided in this section, that the prisoner is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, the prisoner shall be granted medical parole if the Board of Parole Hearings determines that the conditions under which the prisoner he or she would be released would not reasonably pose a threat to public safety.
(b)Subdivision (a) shall not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute. The provisions of this section shall not be construed to alter or diminish the rights conferred under the Victims Bill of Rights Act of 2008: Marsys Law.
(b)This section does not alter or diminish the rights conferred under the Victims Bill of Rights Act of 2008 (Marsys Law). Subdivision (a) does not apply to any of the following:
(1)A prisoner sentenced to death or life in prison without possibility of parole.
(2)A prisoner who is serving a sentence for which parole, pursuant to subdivision (a), is prohibited by any initiative statute.
(3)(A)A prisoner who was convicted of first degree murder if the victim was a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
(B)The victim was a peace officer or had been a peace officer, as defined in Chapter 4.5 (commencing with Section 830) of Title 3, and was intentionally murdered in retaliation for the performance of his or her official duties, and the defendant was sentenced on or after January 1, 2016.
(c)When a physician employed by the Department of Corrections and Rehabilitation who is the primary care provider for an inmate identifies an inmate a prisoner identifies a prisoner that he or she believes meets the medical criteria for medical parole specified in subdivision (a), the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the Board of Parole Hearings for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
(d)Notwithstanding any other provisions of this section, the prisoner or his or her family member or designee may independently request consideration for medical parole by contacting the head physician at the prison or the department. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoners primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified in subdivision (a) and, if the head physician of the institution determines that the prisoner satisfies the criteria set forth in subdivision (a), he or she shall refer the matter to the Board of Parole Hearings using a standardized form and format developed by the department. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
(e)The Department of Corrections and Rehabilitation shall complete parole plans for inmates referred to the Board of Parole Hearings for medical parole consideration. The parole plans shall include, but not be limited to, the inmates plan for residency and medical care.
(f)Notwithstanding any other law, medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
(g)Upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole pursuant to subdivision (c) or (d), the board, as specified in subdivision (f), shall make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
(h)Notwithstanding any other provision of law, the board or the Division of Adult Parole Operations shall have the authority to impose any reasonable conditions on prisoners subject to medical parole supervision pursuant to subdivision (a), including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, pursuant to subdivision (a), the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolees current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the persons medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
(1)Notwithstanding any other provision of law establishing maximum periods for parole, a prisoner sentenced to a determinate term who is placed on medical parole supervision prior to the earliest possible release date and who remains eligible for medical parole, shall remain on medical parole, pursuant to subdivision (a), until that earliest possible release date, at which time the parolee shall commence serving that period of parole provided by, and under the provisions of, Chapter 8 (commencing with Section 3000) of Title 1.
(2)Notwithstanding any other provisions of law establishing maximum periods for parole, a prisoner sentenced to an indeterminate term who is placed on medical parole supervision prior to the prisoners minimum eligible parole date, and who remains eligible for medical parole, shall remain on medical parole pursuant to subdivision (a) until that minimum eligible parole date, at which time the parolee shall be eligible for parole consideration under all other provisions of Chapter 8 (commencing with Section 3000) of Title 1.
(i)The Department of Corrections and Rehabilitation shall, at the time a prisoner is placed on medical parole supervision pursuant to subdivision (a), ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoners forwarding address after release to health care-related parole supervision.
(j)The provisions for medical parole set forth in this title shall not affect an inmates eligibility for any other form of parole or release provided by law.
(k)(1)Notwithstanding any other provision of law, the Department of Corrections and Rehabilitation shall give notice to the county of commitment and the proposed county of release, if that county is different than the county of commitment, of any medical parole hearing as described in subdivision (f), and of any medical parole release as described in subdivision (g).
(2)Notice shall be made at least 30 days, or as soon as feasible, prior to the time any medical parole hearing or medical parole release is scheduled for an inmate receiving medical parole consideration, regardless of whether the inmate is sentenced either determinately or indeterminately.
|
Date
|
Status
|
|---|---|
| Jun 14, 2016 | June 14 set for first hearing canceled at the request of author. |
| Aug 30, 2016 | Enrolled and presented to the Governor at 1:30 p.m. |
| Aug 24, 2016 | Assembly amendments concurred in. (Ayes 36. Noes 1.) Ordered to engrossing and enrolling. |
| Aug 23, 2016 | Read third time. Passed. (Ayes 78. Noes 0. Page 6097.) Ordered to the Senate. |
| Aug 23, 2016 | Read third time. Passed. Ordered to the Senate. |
| Aug 23, 2016 | In Senate. Concurrence in Assembly amendments pending. |
| Aug 19, 2016 | Read third time and amended. (Ayes 73. Noes 0. Page 5966.) |
| Aug 19, 2016 | Read third time and amended. |
| Aug 19, 2016 | Ordered to third reading. |
| Aug 16, 2016 | Read second time. Ordered to third reading. |
| Aug 15, 2016 | Read second time and amended. Ordered to second reading. |
| Aug 12, 2016 | From committee: Do pass as amended. (Ayes 20. Noes 0.) (August 11). |
| Aug 3, 2016 | August 3 set for first hearing. Placed on APPR. suspense file. |
| Jun 27, 2016 | Read second time and amended. Re-referred to Com. on APPR. |
| Jun 23, 2016 | From committee: Do pass as amended and re-refer to Com. on APPR. (Ayes 7. Noes 0.) (June 21). |
| Dec 1, 2014 | Introduced. Read first time. To Com. on RLS. for assignment. To print. |
| Apr 28, 2016 | Referred to Com. on PUB. S. |
| Jan 27, 2016 | Read third time. Passed. (Ayes 35. Noes 1. Page 2961.) Ordered to the Assembly. |
| Jan 27, 2016 | In Assembly. Read first time. Held at Desk. |
| Jan 25, 2016 | Read second time. Ordered to third reading. |
| Jan 21, 2016 | From committee: Do pass. (Ayes 7. Noes 0. Page 2934.) (January 21). |
| Jan 16, 2016 | Set for hearing January 21. |
| May 28, 2015 | May 28 hearing: Held in committee and under submission. |
| May 23, 2015 | Set for hearing May 28. |
| Apr 27, 2015 | April 27 hearing: Placed on APPR. suspense file. |
| Apr 17, 2015 | Set for hearing April 27. |
| Apr 15, 2015 | From committee: Do pass and re-refer to Com. on APPR. (Ayes 4. Noes 1. Page 594.) (April 14). Re-referred to Com. on APPR. |
| Mar 20, 2015 | Set for hearing April 14. |
| Jan 15, 2015 | Referred to Com. on PUB. S. |
| Dec 2, 2014 | From printer. May be acted upon on or after January 1. |
|
Date
|
Description
|
Location
|
Votes
|
|
|---|---|---|---|---|
| Aug 24, 2016 | Unfinished Business SB6 Galgiani Concurrence | Senate Floor |
Passed |
|
| Aug 23, 2016 | SB 6 Galgiani Senate Third Reading By GONZALEZ | Assembly Floor |
Passed |
|
| Aug 19, 2016 | SB 6 Galgiani Senate Third Reading Amendment Set #1 | Assembly Floor |
Passed |
|
| Aug 11, 2016 | Do pass as amended. | Assembly Standing Committee on Appropriations |
Passed |
|
| Jun 21, 2016 | Do pass as amended and be re-referred to the Committee on [Appropriations] | Assembly Standing Committee on Public Safety |
Passed |
|
| Jan 27, 2016 | Senate 3rd Reading SB6 Galgiani | Senate Floor |
Passed |
|
| Jan 21, 2016 | Do pass | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 27, 2015 | Placed on suspense file | Senate Standing Committee on Appropriations |
Passed |
|
| Apr 14, 2015 | Do pass, but first be re-referred to the Committee on [Appropriations] | Senate Standing Committee on Public Safety |
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
|
|---|---|---|
| American Civil Liberties Union of California | ** Against | Aug 23, 2016 |
| Association For Los Angeles Deputy Sheriffs | ** Support | Aug 23, 2016 |
| California Association Of Code Enforcement Officers | ** Support | Aug 23, 2016 |
| California Association Of Highway Patrolmen | ** Support | Aug 23, 2016 |
| California Attorneys For Criminal Justice | ** Against | Aug 23, 2016 |
| California College And University Police Chiefs Association | ** Support | Aug 23, 2016 |
| California Correctional Supervisors Organization, Inc. | ** Support | Aug 23, 2016 |
| California District Attorneys Association | ** Support | Aug 23, 2016 |
| California Highway Patrol | * Support | Apr 27, 2015 |
| California Narcotic Officers' Association | ** Support | Aug 23, 2016 |
| California Police Chiefs Association | ** Support | Aug 23, 2016 |
| California State Sheriffs' Association | ** Support | Aug 23, 2016 |
| CAUSE-Statewide Law Enforcement Association Fka: California Union Of Safety Employees | * Support | Apr 27, 2015 |
| Crime Victims United | ** Support | Aug 23, 2016 |
| Fraternal Order of Police | ** Support | Aug 23, 2016 |
| Friends Committee On Legislation Of California | ** Against | Aug 23, 2016 |
| Legal Services for Prisoners with Children | ** Against | Aug 23, 2016 |
| Long Beach Police Officers Association | ** Support | Aug 23, 2016 |
| Los Angeles County District Attorney'S Office | ** Support | Aug 23, 2016 |
| Los Angeles County Professional Peace Officers Association | ** Support | Aug 23, 2016 |
| Los Angeles Deputy Sheriffs | ** Support | Aug 23, 2016 |
| Los Angeles Police Protective League | ** Support | Aug 23, 2016 |
| Peace Officers Research Association | ** Support | Aug 23, 2016 |
| Peace Officers Research Association Of California | ** Support | Aug 23, 2016 |
| PUB. S. | ** Against | Aug 23, 2016 |
| Riverside State Sheriffs Association | ** Support | Aug 23, 2016 |
| Sacramento County Deputy Sheriffs' Association | ** Support | Aug 23, 2016 |
| Santa Ana Police Officers Association | ** Support | Aug 23, 2016 |
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
UNFINISHED BUSINESS
Bill No: SB 6
:
SENATE PUBLIC SAFETY COMMITTEE: 4-1, 4/14/15
AYES: Anderson, Leno, McGuire, Stone
NOES: Hancock
NO VOTE RECORDED: Liu, Monning
SENATE APPROPRIATIONS COMMITTEE: 7-0, 1/21/16
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SENATE FLOOR: 35-1, 1/27/16
AYES: Anderson, Bates, Beall, Block, Cannella, De León, Fuller, Gaines, Galgiani, Glazer, Hall, Hernandez, Hertzberg, Hill, Hueso, Huff, Jackson, Lara, Leno, Leyva, McGuire, Mendoza, Monning, Moorlach, Morrell, Nguyen, Nielsen, Pan, Pavley, Roth, Runner, Stone, Vidak, Wieckowski, Wolk
NOES: Hancock
NO VOTE RECORDED: Allen, Berryhill, Liu, Mitchell
ASSEMBLY FLOOR: 78-0, 8/23/16 - See last page for vote
SOURCE: California Narcotic Officers’ Association
DIGEST: This bill makes an individual who killed a peace officer ineligible for compassionate release or medical parole.
Assembly Amendments make technical changes.
Existing law:
- Provides that if the Secretary of the Department of Corrections and Rehabilitation (CDCR), Board of Parole Hearings (BPH), or both determine that the prisoner has six months or less to live, that the conditions under which the prisoner would be released do not pose a threat to public safety and that the prisoner is permanently medically incapacitated, the Secretary of CDCR or BPH may recommend to the court that the prisoner’s sentence be recalled. (Penal Code § 1170 (e)(1) (2).)
- Requires the court to hold a hearing to consider whether a prisoner's sentence should be recalled within 10 days of receipt of a positive recommendation by the Secretary of CDCR or BPH. (Penal Code § 1170 (e)(3).)
- Provides that any physician employed by CDCR who determines that the prisoner has less than six months or less to live shall notify the chief medical officer of the prognosis. If the chief medical officer concurs the warden should be notified and the warden shall then notify the prisoner and designated family members of the recall and resentencing procedures. (Penal Code § 1170(e)(4))
- Provides that the prisoner or his or her family member or designee may request consideration for recall and resentencing by contacting the chief medical officer at the prison or the Secretary of CDCR. If the Secretary of CDCR determines that the prisoner satisfies the criteria, the Secretary or BPH may recommend to the court that the prisoner's sentence be recalled. (Penal Code § 1170 (e)(6).)
- States that the Secretary of CDCR shall submit a recommendation for release within 30 days in the case of inmates sentenced to determinate terms. (Penal Code § 1170 (e)(6).)
- Provides that in the case of inmates sentenced to indeterminate terms, the Secretary may make a recommendation to BPH with respect to inmates who have applied for consideration for recall and resentencing. (Penal Code § 1170 (e)(6).)
- Allows the BPH to make an independent judgment as to whether the inmate is eligible and to make findings related thereto before rejecting the request or making a recommendation to the Court. (Penal Code § 1170 (e)(6).)
- Provides that any recommendation for recall submitted to the court by CDCR or BPH shall include one or more medical evaluations, a post-release plan, and findings made as to the prisoner's eligibility. (Penal Code § 1170 (e)(7).)
- Provides that the above compassionate release provisions do not apply to a prisoner sentenced to death or a term of life without the possibility of parole. (Penal Code § 1170 (e) (2) B)
- Establishes the medical parole program whereby any prisoner who the head physician of the institution where the prisoner is located determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if the BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. (Penal Code § 3550(a).)
- Provides that the medical parole law shall not be construed to alter or diminish the rights conferred under the Victim’s Bill of Rights Act of 2008: Marsy’s Law, including notification of victims of parole proceedings. (Penal Code § 3550(b).)
- States that when a physician employed by CDCR who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole, the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the BPH for consideration for medical parole. (Penal Code § 3550(c).)
- Allows the prisoner or his or her family member or designee to independently request consideration for medical parole by contacting the head physician at the prison or CDCR. (Penal Code § 3550(d).)
- Requires CDCR to complete parole plans for inmates referred to the BPH for medical parole consideration. The parole plans shall include, but not be limited to, the inmate’s plan for residency and medical care. (Penal Code § 3550(e).)
- Provides, notwithstanding any other law, that medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia. (Penal Code § 3550(f).)
- Requires the BPH, upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole, to make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto. (Penal Code § 3550(g).)
- Authorizes the BPH or the Division of Adult Parole Operations to impose any reasonable conditions on prisoners subject to medical parole supervision, including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, the parolee may be required to submit to an examination by a physician selected by the BPH for the purpose of diagnosing the parolee’s current medical condition. If the BPH determines, based on that medical examination that the person’s medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the CDCR. (Penal Code § 3550(h).)
- Requires CDCR, at the time a prisoner is placed on medical parole supervision, to ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. (Penal Code § 3550(i).)
- States that medical parole shall not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which medical parole is prohibited by any initiative statute. (Penal Code § 3550(b).)
This bill:
- Provides that the compassionate release provisions do not apply if a person was convicted of first degree murder of a peace officer who was killed while engaged in the performance of his or her duties and the individual knew or should have known that the victim was a peace officer.
- Provides that the compassionate release provisions do not apply if a person was convicted of murder of a peace officer or former peace officer who was intentionally murdered in retaliation for the performance of his or her official duties and the defendant was sentenced after January 1, 2016.
- Provides that a prisoner who was convicted of first degree murder of a peace officer who the prisoner knew or should have known was in the performance of his or her duties is not eligible for medical parole.
- Provides that a prisoner who was convicted of murder of a peace officer or former peace officer who was intentionally murdered in retaliation for the performance of his or her official duties and the defendant was sentenced after January 1, 2016, shall not be eligible for medical parole.
Background
There are two ways that a prisoner may be released in California for medical reasons, compassionate release or medical parole.
With compassionate release:
A recommendation for the recall of a terminally prisoner under P.C. 1170(e) may be initiated by notification to the warden by any department physician who determines that a prisoner has 6 months or less to live. (P.C. 1170(e)(4).) Also, a prisoner or family member or designee may independently request consideration for recall by contacting the prison's chief medical officer or the secretary. If the secretary determines that the prisoner satisfies the criteria for recall, the secretary or board may recommend to the court that the sentence be recalled. For inmates sentenced to determinate terms, the secretary must submit a recommendation for release within 30 days. For those sentenced to indeterminate terms, the secretary may make a recommendation to the board. At its next lawfully noticed meeting, the board must consider this information and make an independent judgment and related findings before rejecting the request or making a recommendation to the court. (P.C. 1170(e)(6).)
A recommendation for recall by the secretary or the board must include one or more medical evaluations, a postrelease plan, and the required findings. (P.C. 1170(e)(7).) Within 10 days of receipt of a positive recommendation, the court must hold a hearing to consider whether recall is appropriate. (P.C. 1170(e)(3).) If possible, the matter must be heard by the judge who sentenced the prisoner. (P.C. 1170(e)(8).)
If the court grants the recall, the department must release the prisoner within 48 hours of receipt of the court's order, unless the prisoner agrees to a longer time period. (P.C. 1170(e)(9).) (3 Witkin Cal. Crim. Law Punishment § 395)
SB 1399 (Leno, Chapter 405, Statutes of 2010) enacted medical parole, which became operative in January of 2011. (Penal Code § 3550.) The law provides that medical parole shall be granted where (1) an inmate has been found by the head physician in the institute where they are housed to be permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care and (2) BPH also makes a determination that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.
Neither compassionate release nor medical parole applies to a person who is sentenced to life without parole.
This bill provides that compassionate release and medical parole do not apply to a person convicted of first degree murder of a peace officer while performing his or her duties or in retaliation for his or her duties.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Assembly Appropriations Committee, it is impossible to determine a fiscal impact of this bill, or when the fiscal impact would occur. Due to the number of first degree murder cases, CDCR does not maintain statistical data on the number of murder victims that were of peace officers. They do know that there are seven inmates convicted between 1970 and 2007 for murder in the second degree of a peace officer; four of these inmates have sentences of life without the possibility of parole. Therefore, there are three known inmates who will be excluded from compassionate release or medical parole, but they may not requested either. However, inmates in either category are very expensive patients, their annual medical cost could be anywhere from $160,000 to over $1 million.
California Narcotic Officers’ Association (source)
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Peace Officers Association
California Correctional Supervisors Organization
California District Attorneys Association
California Police Chiefs Association
California State Lodge
California State Sheriffs’ Association
California Statewide Law Enforcement Association
Crime Victims United
Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County District Attorney’s Office
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs’ Association
Santa Ana Police Officers Association
OPPOSITION: (Verified 8/23/16)
American Civil Liberties Union
California Attorneys for Criminal Justice
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
ARGUMENTS IN SUPPORT: According to the author:
In 1973, a Mr. Gerald Youngberg took the lives of San Bernardino County Sheriff's Lt. Al Stewart, California Highway Patrol Officer Larry Wetterling, and gas station attendant named Robert Jenkins in execution-style murders. In 2012, Youngberg attempted to receive a medical parole release from prison despite major law enforcement opposition throughout California.
Interestingly, California’s medical parole law exempts from eligibility persons sentenced to death or life without the possibility of parole – a sentence Mr. Youngberg would have certainly received had those punishment options been available when he committed this triple murder in 1973. For a period of time in the 1970s, the sentencing options of the death penalty or life without the possibility of parole were not available.
Although Youngberg was ultimately denied his medical parole, the danger that he or a similarly situated person who has been convicted of murdering a peace officer could be released on either medical parole or compassionate release parole remains very real.
Senate Bill 6 would exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the murder of a peace officer.
The honorable work that our men and women in law enforcement perform on a daily basis is crucial to ensuring that our neighbors and families live in safe communities. Senate Bill 6 is necessary to guarantee that individuals convicted of these heinous crimes serve their entire sentences given to them by a jury of their peers.
ARGUMENTS IN OPPOSITION: The American Civil Liberties Union opposes this bill stating:
[C]urrent law simply allows an inmate to petition the Board of Parole Hearings for release. The Board is fully capable of screening the petitions to determine who is appropriate to be released in the totality of the circumstances, including the offense the person has committed. Given the intent of medical parole is to reduce the financial strain of caring for medically incapacitated inmates, the Legislature should not start excepting out specified offenses for which an inmate is not eligible despite being medically incapacitated.
ASSEMBLY FLOOR: 78-0, 8/23/16
AYES: Achadjian, Alejo, Travis Allen, Arambula, Atkins, Baker, Bigelow, Bloom, Bonilla, Bonta, Brough, Brown, Burke, 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, Grove, Hadley, Harper, Roger Hernández, Holden, Irwin, Jones, Jones-Sawyer, 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: Gordon, Gray
Prepared by: Mary Kennedy / PUB. S. /
8/23/16 20:14:26
**** END ****
SENATE THIRD READING
STR Bill Id:SB 6
Author:(Galgiani)
As Amended Ver:August 19, 2016
Majority vote
SENATE VOTE: 35-1
Committee | Votes | Ayes | Noes |
Public Safety | 7-0 | Jones-Sawyer, Melendez, Lackey, Lopez, Low, Quirk, Santiago | |
Appropriations | 20-0 | Gonzalez, Bigelow, Bloom, Bonilla, Bonta, Calderon, Chang, Daly, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Obernolte, Quirk, Santiago, Wagner, Weber, Wood, McCarty |
SUMMARY: Exempts from medical parole and compassionate release eligibility a prisoner who was convicted of first-degree murder of a peace officer, as provided, and applies the provisions of this bill retroactively.
EXISTING LAW:
- Provides if the Secretary of the Department of Corrections and Rehabilitation (CDCR), Board of Parole Hearings (BPH), or both determine that a prisoner has six months or less to live; that the conditions under which the prisoner would be released do not pose a threat to public safety and that the prisoner is permanently medically incapacitated, the Secretary of CDCR or BPH may recommend to the court that the prisoner's sentence be recalled (compassionate release).
- Exempts from compassionate release a prisoner sentenced to death or a term of life without the possibility of parole (LWOP).
- Requires any recommendation for recall submitted to the court by the CDCR Secretary or BPH to include one or more medical evaluations, a postrelease plan, and findings of the prisoner's eligibility.
- Requires the court to hold a hearing within 10 days of receipt of a positive recommendation by BPH or the secretary of CDCR for a prisoner's sentence to be recalled.
- States if the court grants the recall and resentencing application, the prisoner shall be released within 48 hours of receipt of the court order, unless a longer time period is agreed to by the inmate.
- Establishes the medical parole program whereby any prisoner who the head physician of the institution where the prisoner is located determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.
- States that medical parole shall not apply to any prisoner sentenced to death or LWOP or to any inmate who is serving a sentence for which medical parole is prohibited by any initiative statute.
- States that when a physician employed by CDCR who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole, the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the BPH for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to BPH using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
- Allows the prisoner or his or her family member or designee to independently request consideration for medical parole by contacting the head physician at the prison or CDCR. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoner's primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified and, if the head physician of the institution determines that the prisoner satisfies the criteria, he or she shall refer the matter to BPH using a standardized form and format developed by CDCR. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
- Requires CDCR to complete parole plans for inmates referred to BPH for medical parole consideration. The parole plans shall include, but not be limited to, the inmate's plan for residency and medical care.
- Provides, notwithstanding any other law, that medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
- Requires BPH, upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole, to make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
- Authorizes the board or the Division of Adult Parole Operations to impose any reasonable conditions on prisoners subject to medical parole supervision, including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolee's current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the person's medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
- Requires CDCR, at the time a prisoner is placed on medical parole supervision, to ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoner's forwarding address after release to health care-related parole supervision.
- Requires CDCR to give notice at least 30 days' notice, or as soon as feasible, to the county of commitment, and the proposed county of release if applicable, of any medical parole hearing or any medical parole release.
- Provides that the penalty for a defendant found guilty of murder in the first degree, with a finding of one of the enumerated special circumstances, is death or LWOP. Includes first degree murder of a peace officer, as specified, as one of the enumerated special circumstances.
FISCAL EFFECT: According to the Assembly Appropriations Committee, it is impossible to determine a fiscal impact of this bill, or when the fiscal impact would occur. Due to the number of first degree murder cases, CDCR does not maintain statistical data on the number of murder victims that were of peace officers. They do know that there are seven inmates convicted between 1970 and 2007 for murder in the second degree of a peace officer; four of these inmates have sentences of life without the possibility of parole. Therefore, there are three known inmates who will be excluded from compassionate release or medical parole, but they may not requested either. However, inmates in either category are very expensive patients, their annual medical cost could be anywhere from $160,000 to over $1 million.
COMMENTS: According to the author, "The original compassionate release legislation (SB 1399 [(Leno), Chapter 405] from 2010) was intended to prohibit compassionate release for anyone convicted of murder against an officer – as it prohibited compassionate release for anyone serving a death sentence, or sentence of life without the possibility of parole.
"However, there was a multi-year period in the 1970s where California had neither a death penalty nor a sentence of life without the possibility of parole available. For that period of time, persons convicted of first degree murder of a police officer were sentenced to life with parole.
"The honorable work that our men and women in law enforcement perform on a daily basis is crucial to ensuring that our neighbors and families live in safe communities. Senate Bill 6 is necessary to guarantee that individuals convicted of these heinous crimes serve their entire sentences given to them by a jury of their peers."
Please see the policy committee analysis for a full discussion of this bill.
Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0004539
SENATE THIRD READING
STR Bill Id:SB 6
Author:(Galgiani)
As Amended Ver:August 15, 2016
Majority vote
SENATE VOTE: 35-1
Committee | Votes | Ayes | Noes |
Public Safety | 7-0 | Jones-Sawyer, Melendez, Lackey, Lopez, Low, Quirk, Santiago | |
Appropriations | 20-0 | Gonzalez, Bigelow, Bloom, Bonilla, Bonta, Calderon, Chang, Daly, Eggman, Gallagher, Eduardo Garcia, Holden, Jones, Obernolte, Quirk, Santiago, Wagner, Weber, Wood, McCarty |
|
SUMMARY: Exempts from medical parole and compassionate release eligibility a prisoner who was convicted of first-degree murder of a peace officer, as provided, and applies the provisions of this bill retroactively.
EXISTING LAW:
- Provides if the Secretary of the Department of Corrections and Rehabilitation (CDCR), Board of Parole Hearings (BPH), or both determine that a prisoner has six months or less to live; that the conditions under which the prisoner would be released do not pose a threat to public safety and that the prisoner is permanently medically incapacitated, the Secretary of CDCR or BPH may recommend to the court that the prisoner's sentence be recalled (compassionate release).
- Exempts from compassionate release a prisoner sentenced to death or a term of life without the possibility of parole (LWOP).
- Requires any recommendation for recall submitted to the court by the CDCR Secretary or BPH to include one or more medical evaluations, a postrelease plan, and findings of the prisoner's eligibility.
- Requires the court to hold a hearing within 10 days of receipt of a positive recommendation by BPH or the secretary of CDCR for a prisoner's sentence to be recalled.
- States if the court grants the recall and resentencing application, the prisoner shall be released within 48 hours of receipt of the court order, unless a longer time period is agreed to by the inmate.
- Establishes the medical parole program whereby any prisoner who the head physician of the institution where the prisoner is located determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.
- States that medical parole shall not apply to any prisoner sentenced to death or LWOP or to any inmate who is serving a sentence for which medical parole is prohibited by any initiative statute.
- States that when a physician employed by CDCR who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole, the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the BPH for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to BPH using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral.
- Allows the prisoner or his or her family member or designee to independently request consideration for medical parole by contacting the head physician at the prison or CDCR. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoner's primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified and, if the head physician of the institution determines that the prisoner satisfies the criteria, he or she shall refer the matter to BPH using a standardized form and format developed by CDCR. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application.
- Requires CDCR to complete parole plans for inmates referred to BPH for medical parole consideration. The parole plans shall include, but not be limited to, the inmate's plan for residency and medical care.
- Provides, notwithstanding any other law, that medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia.
- Requires BPH, upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole, to make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto.
- Authorizes the board or the Division of Adult Parole Operations to impose any reasonable conditions on prisoners subject to medical parole supervision, including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolee's current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the person's medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department.
- Requires CDCR, at the time a prisoner is placed on medical parole supervision, to ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoner's forwarding address after release to health care-related parole supervision.
- Requires CDCR to give notice at least 30 days' notice, or as soon as feasible, to the county of commitment, and the proposed county of release if applicable, of any medical parole hearing or any medical parole release.
- Provides that the penalty for a defendant found guilty of murder in the first degree, with a finding of one of the enumerated special circumstances, is death or LWOP. Includes first degree murder of a peace officer, as specified, as one of the enumerated special circumstances.
FISCAL EFFECT: According to the Assembly Appropriations Committee, it is impossible to determine a fiscal impact of this bill, or when the fiscal impact would occur. Due to the number of first degree murder cases, CDCR does not maintain statistical data on the number of murder victims that were of peace officers. They do know that there are seven inmates convicted between 1970 and 2007 for murder in the second degree of a peace officer; four of these inmates have sentences of life without the possibility of parole. Therefore, there are three known inmates who will be excluded from compassionate release or medical parole, but they may not requested either. However, inmates in either category are very expensive patients, their annual medical cost could be anywhere from $160,000 to over $1 million.
COMMENTS: According to the author, "The original compassionate release legislation (SB 1399 [(Leno), Chapter 405] from 2010) was intended to prohibit compassionate release for anyone convicted of murder against an officer – as it prohibited compassionate release for anyone serving a death sentence, or sentence of life without the possibility of parole.
"However, there was a multi-year period in the 1970s where California had neither a death penalty nor a sentence of life without the possibility of parole available. For that period of time, persons convicted of first degree murder of a police officer were sentenced to life with parole.
"The honorable work that our men and women in law enforcement perform on a daily basis is crucial to ensuring that our neighbors and families live in safe communities. Senate Bill 6 is necessary to guarantee that individuals convicted of these heinous crimes serve their entire sentences given to them by a jury of their peers."
Please see the policy committee analysis for a full discussion of this bill.
Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744 FN: 0004010
Date of Hearing: August 3, 2016
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Lorena Gonzalez, Chair
SBPCA Bill Id:SB 6
Author:(Galgiani) – As Amended Ver:June 27, 2016
Policy Committee: | Public Safety | Vote: | 7 - 0 |
Urgency: No State Mandated Local Program: No Reimbursable: No
SUMMARY:
This bill exempts from medical parole and compassionate release eligibility a prisoner who was convicted of the murder of a peace officer, as provided, and applies the provisions of this bill retroactively.
FISCAL EFFECT:
It is impossible to determine a fiscal impact of this bill, or when the fiscal impact would occur. Due to the number of first degree murder cases, CDCR does not maintain statistical data on the number of murder victims that were of peace officers. They do know that there are seven inmates convicted between 1970 and 2007 for murder in the second degree of a peace officer; four of these inmates have sentences of life without the possibility of parole. Therefore, there are three known inmates who will be excluded from compassionate release or medical parole, but they may not requested either. However, inmates in either category are very expensive patients, their annual medical cost could be anywhere from $160,000 to over $1 million.
COMMENTS:
- Background. Under current law, if the Secretary of the Department of Corrections and Rehabilitation (CDCR), Board of Parole Hearings (BPH), or both determine that a prisoner has six months or less to live; that the conditions under which the prisoner would be released do not pose a threat to public safety and that the prisoner is permanently medically incapacitated, the Secretary of CDCR or BPH may recommend to the court that the prisoner’s sentence be recalled. However, current law exempts from compassionate release a prisoner sentenced to death or a term of life without the possibility of parole. In 2015, BPH referred nine cases to the court for review, and eleven cases in each of the two prior years.
Existing law also establishes the medical parole program whereby any prisoner who the head physician of the institution where the prisoner is located determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. However, medical parole does not apply to any prisoner sentenced to death or LWOP or to any inmate who is serving a sentence for which medical parole is prohibited by any initiative statute. In 2015, 20 cases were approved, 18 cases in 2014 and 8 cases in 2013.
- Purpose. According to the author, "The original compassionate release legislation (SB 1399 from 2010) was intended to prohibit compassionate release for anyone convicted of murder against an officer – as it prohibited compassionate release for anyone serving a death sentence, or sentence of life without the possibility of parole.
"However, there was a multi-year period in the 1970s where California had neither a death penalty nor a sentence of life without the possibility of parole available. For that period of time, persons convicted of first degree murder of a police officer were sentenced to life with parole.
"The honorable work that our men and women in law enforcement perform on a daily basis is crucial to ensuring that our neighbors and families live in safe communities. Senate Bill 6 is necessary to guarantee that individuals convicted of these heinous crimes serve their entire sentences given to them by a jury of their peers."
- Comment. SB 6 excludes prisoners from medical parole based solely on the nature of the crime. This is contrary to the purpose of the medical parole law and contrary to the law on parole suitability in general. The California Supreme Court has held that parole suitability cannot be based solely on the nature of the crime. Parole suitability must be based on an evaluation of several factors to determine the current dangerousness to the public.
- Support. According to California Narcotic Officers' of California, the sponsor of this bill, "Senate Bill 6 will close a loophole that currently exists in California's Medical Parole and Compassionate Release laws.
- Opposition. According to the American Civil Liberties Union, “The Board [of Parole Hearings] is fully capable of screening the petitions to determine who is appropriate to be released in the totality of circumstances, including the offense the person committed. Given that the intent of medical parole is to reduce the financial strain of caring for medically incapacitated inmates, the Legislature should not start excepting out specified offenses for which an inmate is not eligible, despite being medically incapacitated. If an inmate meets the requirements specified in the law, he or she should be eligible for release."
Analysis Prepared by: Pedro Reyes / APPR. / (916) 319-2081
Date of Hearing: June 14, 2016
Counsel: Stella Choe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Reginald Byron Jones-Sawyer, Sr., Chair
SBPCA Bill Id:SB 6
Author:(Galgiani) – As Introduced Ver:December 1, 2014
As Proposed to be Amended in Committee
SUMMARY: Exempts from medical parole and compassionate release eligibility a prisoner who was convicted of the murder of a peace officer, as provided, and applies the provisions of this bill retroactively.
EXISTING LAW:
- Provides if the Secretary of the Department of Corrections and Rehabilitation (CDCR), Board of Parole Hearings (BPH), or both determine that a prisoner has six months or less to live; that the conditions under which the prisoner would be released do not pose a threat to public safety and that the prisoner is permanently medically incapacitated, the Secretary of CDCR or BPH may recommend to the court that the prisoner’s sentence be recalled (compassionate release). (Pen. Code, § 1170, subd. (e)(1) & (2).)
- Exempts from compassionate release a prisoner sentenced to death or a term of life without the possibility of parole (LWOP). (Pen. Code, § 1170, subd. (e)(2)(C).)
- Requires any recommendation for recall submitted to the court by the CDCR Secretary or BPH to include one or more medical evaluations, a postrelease plan, and findings of the prisoner's eligibility. (Pen. Code, § 1170, subd. (e)(7).)
- Requires the court to hold a hearing within 10 days of receipt of a positive recommendation by BPH or the secretary of CDCR for a prisoner's sentence to be recalled. (Pen. Code, § 1170, subd. (e)(3).)
- States if the court grants the recall and resentencing application, the prisoner shall be released within 48 hours of receipt of the court order, unless a longer time period is agreed to by the inmate. (Pen. Code, § 1170, subd. (e)(9).)
- Establishes the medical parole program whereby any prisoner who the head physician of the institution where the prisoner is located determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. (Pen. Code, § 3550, subd. (a).)
- States that medical parole shall not apply to any prisoner sentenced to death or LWOP or to any inmate who is serving a sentence for which medical parole is prohibited by any initiative statute. (Pen. Code, § 3550, subd. (b).)
- States that when a physician employed by CDCR who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole, the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the BPH for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to BPH using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral. (Pen. Code, § 3550, subd. (c).)
- Allows the prisoner or his or her family member or designee to independently request consideration for medical parole by contacting the head physician at the prison or CDCR. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoner’s primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified and, if the head physician of the institution determines that the prisoner satisfies the criteria, he or she shall refer the matter to BPH using a standardized form and format developed by CDCR. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application. (Pen. Code, § 3550, subd. (d).)
- Requires CDCR to complete parole plans for inmates referred to BPH for medical parole consideration. The parole plans shall include, but not be limited to, the inmate’s plan for residency and medical care. (Pen. Code, § 3550, subd. (e).)
- Provides, notwithstanding any other law, that medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia. (Pen. Code, § 3550, subd. (f).)
- Requires BPH, upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole, to make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto. (Pen. Code, § 3550, subd. (g).)
- Authorizes the board or the Division of Adult Parole Operations to impose any reasonable conditions on prisoners subject to medical parole supervision, including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, the parolee may be required to submit to an examination by a physician selected by the board for the purpose of diagnosing the parolee’s current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the board by the examining physician. If the board determines, based on that medical examination, that the person’s medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the department. (Pen. Code, § 3550, subd. (h).)
- Requires CDCR, at the time a prisoner is placed on medical parole supervision, to ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoner’s forwarding address after release to health care-related parole supervision. (Pen. Code, § 3550, subd. (i).)
- Requires CDCR to give notice at least 30 days' notice, or as soon as feasible, to the county of commitment, and the proposed county of release if applicable, of any medical parole hearing or any medical parole release. (Pen. Code, § 3550, subd. (k).)
- Provides that the penalty for a defendant found guilty of murder in the first degree, with a finding of one of the enumerated special circumstances, is death or LWOP. Includes first degree murder of a peace officer, as specified, as one of the enumerated special circumstances. (Pen. Code, § 190.2, subd. (a)(7).)
FISCAL EFFECT: Unknown
COMMENTS:
- Author's Statement: According to the author, "The original compassionate release legislation (SB 1399 from 2010) was intended to prohibit compassionate release for anyone convicted of murder against an officer – as it prohibited compassionate release for anyone serving a death sentence, or sentence of life without the possibility of parole.
"However, there was a multi-year period in the 1970s where California had neither a death penalty nor a sentence of life without the possibility of parole available. For that period of time, persons convicted of first degree murder of a police officer were sentenced to life with parole.
"The honorable work that our men and women in law enforcement perform on a daily basis is crucial to ensuring that our neighbors and families live in safe communities. Senate Bill 6 is necessary to guarantee that individuals convicted of these heinous crimes serve their entire sentences given to them by a jury of their peers."
- Compassionate Release: To be eligible for compassionate release, a prisoner must be "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 [CDCR]." (Pen. Code, § 1170, subd. (e)(2)(A).) The court must also make a finding that the conditions under which the prisoner would be released or receive treatment do not pose a threat to public safety. (Pen. Code, § 1170, subd. (e)(2)(B).) Compassionate release may also be available to a prisoner who is permanently incapacitated by a medical condition and unable to perform activities of daily living, requiring 24-hour care. (Pen. Code, § 1170, subd. (e)(2)(C).) The prisoner is ineligible if he or she is sentenced to death or a term of LWOP. (Ibid.)
If the secretary of CDCR determines that the prisoner satisfies the criteria for recall of his or her sentence, the secretary or BPH may recommend to the court that the sentence be recalled. At its next lawfully noticed meeting, BPH must consider this information and make an independent judgment and related findings before rejecting the request or making a recommendation to the court. (Pen. Code, § 1170, subd. (e)(6).) Any recommendation for recall of the inmate's sentence submitted to the court shall include one or more medical evaluations, a postrelease plan, and findings regarding the prisoner's eligibility for release. (Pen. Code, § 1170, subd. (e)(7).) Within 10 days of receipt of a positive recommendation, the court must hold a hearing to consider whether recall is appropriate. (Pen. Code, § 1170, subd. (e)(3).) If possible, the matter must be heard by the judge who sentenced the prisoner. (Pen. Code, § 1170, subd. (e)(8).) If the court grants recall of the prisoner's sentence, the prisoner must be released within 48 hours of receipt of the court's order, unless the inmate agrees to a longer time period. (Pen. Code, § 1170, subd. (e)(9).)
Due to its stringent criteria and lengthy process, the number of prisoners released on compassionate release is quite low. From 2007 through the first ten months of 2013, CDCR received 488 requests for compassionate release, of which 99 were approved. In 2012, 97 applications for compassionate release were submitted to CDCR for review; 35 were approved and advanced to the sentencing court; 13 sentences were recalled by judges, clearing the way for release. 27 cases were never completed due to withdrawal, death, or not meeting the criteria. (McNichol, Final Requests (Jan. 2014) California Lawyer, at pp. 18-21.) - Medical Parole: In 2010, California's medical parole law was signed into law. (SB 1399 (Leno), Chapter 405, Statutes of 2010.) The law applies to those inmates who have been declared by the head physician in the institute where they are housed to be permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care. BPH must also make a determination that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.
The Legislature crafted SB 1399 to address some of the shortcomings of the compassionate release statute (Pen. Code, § 1170, subd. (e)). (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1399 (2009-10 Reg. Sess.) as amended June 23, 2014.) Unlike compassionate release which requires the court to recall the sentence, medical parole creates an alternative procedure that permits these inmates to be placed on parole supervision under conditions determined by the parole board, and allows parole to be revoked if for any reason the parolee's condition changes and creates a danger to the public.
The purpose of the medical parole law was to alleviate some of the financial burden facing CDCR in caring for inmates suffering from certain medical conditions. According to the background information provided by the author's office for SB 1399:
"SB 1399 will medically parole, the sickest of the sick. And although this would only apply to a handful of inmates, these inmates are by far the most costly in the system. The average cost for an inmate placed in a correctional treatment center bed is $10,604. When you add the costs of medical guarding and transportation to that (patients in this setting normally average one to three outside medical visits with hospital transportation and two correctional officers at the hourly rate, plus benefits) the figure rises to $114,395 dollars per inmate. The Federal Receiver has identified 11 inmates as extremely incapacitated and housed within the prison system in correctional treatment center beds with medical bills averaging over $114,000 each per year.
"An additional 21 inmates are housed at an even higher rate to the taxpayer in nursing facilities or hospitals outside of the prison facility. These type of beds average a cost of $3,500 per day. When you add the guarding costs to that (two correctional officers per shift, three shifts per day, straight time plus benefits) the number jumps to $5,406 a day. So the total cost for a single inmate in this type of treatment setting is nearly $2 million - $1,973,252. This means that the state has paid a total of $41.4 million a year for just 21 individuals who would most likely qualify as medical parole candidates under this legislation due to their severe medical condition as evidenced by the exorbitant costs of their medical care.
"Finally, there is one more type of bed, the hospice bed. For inmates dying in this type of medical setting, the costs of a physician assistant, registered nurse, office assistant, and clinical social worker total nearly $2 million per hospice bed – $1,868,232. CDCR has 17 hospice beds currently within the system at a price of $31,759,944 – nearly $32 million dollars a year.
"By eliminating the requirement for 24-hour guard care at health facilities, a medical parole program could save the state millions just in custody and transportation costs alone. According to the State Auditor, between 2003 and 2008, medical guard time accounted for 24% of the prison system’s total guard overtime. Spending for guard costs has increased by $66 million since 2003. The price for two correctional officers to guard a single inmate at an outside nursing facility has been reported to be $2,317 a day. The guard price for the inmate during a six-month period was $410,000. That’s nearly equal to actual cost of medical care provided to the inmate during the same timeframe which totaled an additional $421,000. We can assume that for every inmate we send out into the community for special treatment, we are nearly doubling the taxpayer burden for the cost of their incarceration.
"Incarcerated inmates, regardless of their medical condition, are not eligible to receive any federally funded medical care. However, these restrictions do not apply to persons on parole, meaning that SB 1399 would allow the State to receive federal reimbursement for a significant portion of the costs associated with inmates eligible to be placed on medical parole.
"Currently, prisoners who are suffering from severe medical incapacitation are treated in correctional treatment center beds, outside hospital patient beds, or hospice beds; the price tag for which starts at nearly $115,000 a year for the lowest level treatment setting of the three options. Now, taking that into account, imagine the savings that could be realized given that the average annual cost of Medi-Cal fee-for-service skilled nursing care is only about $60,000. Of course, the cost of skilled nursing varies significantly depending on the acuity level of patients and it's likely that terminally ill patients on average would have greater care needs and thus have a higher average cost; nevertheless, the Medi-Cal cost share is 50-percent state and 50-percent federal meaning the state would only pay half one-the costs of caring for a parolee being treated in the community if he or she qualified for Medi-Cal. Further, it is conceivable that many of these inmates will qualify for Medicare which is entirely funded by the federal government." (Assem. Com. on Public Safety, Analysis of Sen. Bill No. 1399, supra, pp. 5-7.)
- Parole Suitability: The California Supreme Court has held that parole suitability cannot be based solely on the nature of the crime. (In re Lawrence (2008) 44 Cal.4th 1181, 1221.) Parole suitability must be based on an evaluation of several factors to determine the current dangerousness to the public. (Ibid.) The nature of the crime is merely a consideration in parole suitability and in the context of medical parole, BPH can consider that factor along with whether the prisoner is eligible due to his or her medical condition; and whether his or her parole would pose a reasonable public safety risk in making its decision.
SB 6 excludes prisoners from medical parole based solely on the nature of the crime. This is contrary to the purpose of the medical parole law and contrary to the law on parole suitability in general. While the rationale to exclude this particular category of inmates is based on parity because an inmate sentenced to first degree murder of a peace officer today would receive a sentence of either LWOP or death, thus making the inmate ineligible for medical parole, it also creates a new precedent of excluding certain prisoners from medical parole based solely on the nature of the offense. This could lead to new categories of exclusion in the future which would further erode the medical parole law. - Ex Post Facto Concerns: Both the United States Constitution and the California Constitution prohibit ex post facto laws. (U.S. Const. art. I, Section 10; Cal. Const. art. I, Section 9.) "[T]wo critical elements must be present for a criminal or penal law to be ex post facto: it must be retrospective, that is, it must apply to events occurring before its enactment, and it must disadvantage the offender affected by it." (Weaver v. Graham (1981) 450 U.S. 24, 29.) The purpose of the prohibition against ex post facto laws is to ensure due process through fair notice of the conduct that constitutes a crime and the punishment that may be imposed for a crime. (In re Rosenkrantz (2002) 29 Cal.4th 616, 638.)
Although courts have held that certain changes to parole violate the ex post facto rule (see In re Thomson (1980) 104 C.A.3d 950, 954; In re Bray (1979) 97 C.A.3d 506, 510 [increase in length of parole term violates ex post facto]), procedural changes in the parole system are generally not ex post facto violations (see California Dept. of Corrections v. Morales (1995) 514 U.S. 499 [changes to parole procedures allowing a state parole board to decrease the frequency of parole suitability hearings under certain circumstances does not violate the Ex Post Facto Clause]). Whether a change in parole procedures violates ex post facto principles requires consideration of whether there is a significant risk the change will prolong a prisoner's incarceration. (In re Vicks (2013) 56 Cal.4th 274, 300.)
In Morales, supra, the United States Supreme Court considered California's 1981 increase in the potential deferral period between parole suitability hearings. Specifically, the amended statute authorized the Board to defer subsequent suitability hearings for up to three years if the prisoner has been convicted of more than one offense which involves the taking of a life and if the Board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding. (Morales, supra, 514 U.S. at p. 503.) After evaluating whether the change would violate ex post facto principles, the Supreme Court concluded that the Board's new authority to defer hearings created only a speculative possibility of increasing a prisoner's punishment because: (1) the amendment applied only to a class of prisoners for whom the likelihood of release on parole is remote; and, (2) only after the Board had concluded at the initial parole hearing that the prisoner was not suitable for parole and it was not reasonable to expect that the prisoner would be suitable for parole in a year would the timing of a prisoner's hearings be affected. (Id. at pp. 510-511.)
Similarly, in Vicks, supra, the California Supreme Court considered whether the increase in the period of time between parole hearings established by Marsy's Law violated the Ex Post Facto Clause by creating a significant risk of prolonged incarceration. Marsy's Law (enacted by Proposition 9, approved by California voters in 2008) increased the time between parole hearings. The default period between hearings became 15 years, absent a finding by BPH that there is a reasonable likelihood the prisoner would be suitable for parole at an earlier hearing. In evaluating Vicks' ex post facto challenge, the Court compared his case to Weaver, supra, where the United States Supreme Court found an ex post facto violation where there was a reduction in the rate at which the prisoner accumulated credit for good behavior in prison because the reduction was a lost opportunity for release. (Weaver, supra, 450 U.S. 24 at pp. 35-36.) In contrast to the change considered in Weaver, Marsy's Law did not alter the criteria for obtaining release. The court found that Vicks had not lost an opportunity for earlier release because there is no reasonable likelihood that he would be suitable for parole earlier than the hearing date he was assigned, which was five years. (Vicks, supra, 56 Cal.4th at p. 312.)
Recently, the Ninth Circuit Court of Appeals took up the issue of whether Propositions 9 and 89 violated the Ex Post Facto Clause. (Gilman v. Brown (9th Cir. 2016) 814 F.3d 1007.) Proposition 9 is discussed in the Vicks case. Proposition 89, approved by California voters in 1988, amended the California Constitution to grant the Governor 30 days to affirm, modify, or reverse decisions of BPH. Prior to the passage of Proposition 89, BPH had the exclusive power to make parole decisions. The Court weighed whether the changes in law effected by these Propositions, which applied retroactively to the defendant who was convicted prior to the passage of the Propositions, created a "significant risk of a higher sentence." (Id. at 1015.) As to the defendant's challenge to Proposition 89, the Court held that the change in law as applied to the defendant did not violate the Ex Post Facto Clause because he could not show that he would have received parole before the enactment of Proposition 89. The Court stated that the law did not change the factors used to determine whether a person would receive parole, rather, it changed who would ultimately make the decision. (Id. at 1016.)
As to defendant's challenge to Proposition 9, the Court, similar to the rationale used in Vicks, pointed out that "in reviewing decisions of state parole authorities for potential Ex Post Facto Clause issues, the question is not whether 'discretion is been changed in its exercise' by changes in parole procedures, but whether discretion 'will not be exercised at all.'" (Gilman, supra, 814 F.3d at 1007, quoting Garner v. Jones (529 U.S. 244, 254).) The Court found that Proposition 9 did not require BPH to engage in a "categorical exemption" and held that the change in law did not violate the Ex Post Facto Clause as applied to the defendant. (Id. at 1020.)
In Morales and Vicks BPH retained discretion to expedite the parole hearing sooner than the established deferral times if there was a reasonable likelihood that the prisoner would be suitable for parole prior to the date of the established hearing. Also, in Gilman, while the Court held that an Ex Post Facto claim cannot be successful if based on a speculative, attenuated risk of affecting a priosner's actual term of imprisonment, the Court again made note that the Ex Post Facto Clause is violated when BPH retains its discretion, rather than being required to engage in a categorical exemption from parole. (Gilman, supra, 814 F.3d at 1007.)
Unlike Morales, Vicks and Gilman, SB 6 removes discretion from BPH by stating that categorically prisoners who have committed first degree murder of a peace officer is ineligible for medical parole or compassionate release. SB 6 will increase a prisoner's incarceration by altering the criteria for release so a prisoner who is currently eligible for medical parole or compassionate release would no longer be eligible if SB 6 becomes law. Thus, similar to Weaver, this change can be viewed as a lost opportunity for a prisoner who may be eligible for medical parole or compassionate release prior to passage of this bill.
While it would be speculative to argue that Mr. Youngberg (the inmate referenced in the author's statement) would have been released but for this law, it may be violate the Ex Post Facto Clause as applied to another prisoner. In fact, Mr. Youngberg applied for medical parole in 2012 and BPH denied his application, thus similar to Gilman, it cannot be shown that he would have received medical parole but for this law. This Committee has been informed by CDCR that Mr. Youngberg died shortly after he was denied medical parole. When asked how many other inmates would be affected by SB 6's provisions, CDCR could not provide data because the Penal Code section related to first-degree murder covers all first degree murder, not just those involving a peace officer victim. If there are any other inmates who would be affected by this legislation, they may still challenge the SB 6 if it becomes law as violating the Ex Post Facto Clause as applied to them.
- Proposed Amendments: This bill is being heard as proposed to be amended. The amendments are technical in nature and intended to clarify that the exclusion applies to those who would be convicted of first degree murder with special circumstances which carries a penalty of either LWOP or death in order to accomplish the bill's stated purpose of covering only those inmates who were sentenced to first degree murder of a peace officer between 1972 and 1977 when the death penalty was not an available sentence because it was declared to be unconstitutional. The sentence of LWOP in these types of cases was also not available until 1977.
- Argument in Support: According to California Narcotic Officers' of California, the sponsor of this bill, "Senate Bill 6 will close a loophole that currently exists in California's Medical Parole and Compassionate Release laws. When Medical Parole and Compassionate Release were first enacted, that law contained within its provisions language that specifically exempted persons who had been sentenced to death or persons who had been sentenced to life in prison without the possibility of parole.
"The clear intent of this provision was to assure that persons who had committed the most serious of crimes would not be eligible for Medical Parole. The challenge is that, unknown when the law was first enacted, from 1972 through 1977 California had neither a death penalty nor a sentence of life in prison without the possibility of parole. What this meant is that persons who committed first degree murder of peace officers in the line of duty during that period – a crime that would result in a sentence of death or life without possibility of parole at any other time in California history – were eligible for Medical Parole or Compassionate Release." - Argument in Opposition: According to the American Civil Liberties Union, "Under existing law, in order to be granted medical parole, an inmate must be deemed 'medically incapacitated, with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prison requiring 24-hour care.' (P.C.§3550, subd. (a).) The intent of medical parole is to release inmates who require twenty-four hour care at huge expense to the State. An inmate living in a persistent vegetative state or otherwise medically incapacitated is not likely to pose a threat to public safety, yet the state is responsible for around-the-clock in-custody care at a cost of thousands of dollars per week.
"Moreover, current law simply allows an inmate to petition Board of Parole Hearings for release. The Board is fully capable of screening the petitions to determine who is appropriate to be released in the totality of circumstances, including the offense the person committed. Given that the intent of medical parole is to reduce the financial strain of caring for medically incapacitated inmates, the Legislature should not start excepting out specified offenses for which an inmate is not eligible, despite being medically incapacitated. If an inmate meets the requirements specified in the law, he or she should be eligible for release."
- Prior Legislation:
- SB 1284 (Galgiani), of the 2013-2014 Legislative Session, was substantially similar to this bill. SB 1284 died in this Committee.
- AB 353 (Brown), of the 2013-2014 Legislative Session, was substantially similar to this bill. AB 353 died in this Committee.
- SB 1399 (Leno), Chapter 405, Statutes of 2010, established California's medical parole law.
- AB 1539 (Krekorian), Chapter 740, Statutes of 2007, established criteria and procedure for which a state prisoner may have his or her sentence recalled and be re-sentenced if he or she is diagnosed with a disease that would produce death within six months or is permanently medically incapacitated and whose release is deemed not to threaten public safety.
- SB 1547 (Romero), of the 2005-06 Legislative Session, would have required CDCR to establish programs that would parole geriatric and medically incapacitated inmates who no longer pose a threat to the public safety. SB 1547 failed passage on the Assembly floor.
- AB 1946 (Steinberg), of the 2003-04 Legislative Session, would have provided that terminally ill or medically incapacitated prisoners, as specified, are eligible to apply to have their sentences recalled and to be re-sentenced; and made legislative findings that programs should be available for inmates that are designed to prepare nonviolent felony offenders for successful reentry into the community. AB 1946 was vetoed by the Governor.
- AB 29 (Villaraigosa), Chapter 751, Statutes of 1997, established a procedure whereby a court may have the discretion to re-sentence or recall a sentence if a prisoner is terminally ill with an incurable condition caused by an illness or disease that would produce death within six months
- SB 1284 (Galgiani), of the 2013-2014 Legislative Session, was substantially similar to this bill. SB 1284 died in this Committee.
REGISTERED SUPPORT / OPPOSITION:
Support
California Narcotic Officers' Association (Sponsor)
California Association of Code Enforcement Officers
California Association of Highway Patrolmen
California College and University Police Chiefs Association
California Correctional Supervisors Organization
California District Attorneys Association
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Fraternal Order of Police
Los Angeles County Professional Peace Officers Association
Los Angeles Deputy Sheriffs
Los Angeles Police Protective League
Peace Officers Research Association of California
Riverside State Sheriffs Association
Opposition
American Civil Liberties Union of California
California Attorneys for Criminal Justice
Analysis Prepared by: Stella Choe / PUB. S. / (916) 319-3744
Office of Senate Floor Analyses (916) 651-1520 Fax: (916) 327-4478 | SB |
THIRD READING
Bill No: SB 6
:
SENATE PUBLIC SAFETY COMMITTEE: 4-1, 4/14/15
AYES: Anderson, Leno, McGuire, Stone
NOES: Hancock
NO VOTE RECORDED: Liu, Monning
SENATE APPROPRIATIONS COMMITTEE: 7-0, 1/21/16
AYES: Lara, Bates, Beall, Hill, Leyva, Mendoza, Nielsen
SOURCE: California Narcotic Officers’ Association
DIGEST: This bill makes an individual who killed a peace officer ineligible for compassionate release or medical parole.
Existing law:
- Provides that if the Secretary of the Department of Corrections and Rehabilitation (CDCR), Board of Parole Hearings (BPH), or both determine that the prisoner has six months or less to live, that the conditions under which the prisoner would be released do not pose a threat to public safety and that the prisoner is permanently medically incapacitated, the Secretary of CDCR or BPH may recommend to the court that the prisoner’s sentence be recalled. (Penal Code § 1170 (e)(1) (2).)
- Requires the court to hold a hearing to consider whether a prisoner's sentence should be recalled within 10 days of receipt of a positive recommendation by the Secretary of CDCR or BPH. (Penal Code § 1170 (e)(3).)
- Provides that any physician employed by CDCR who determines that the prisoner has less than six months or less to live shall notify the chief medical officer of the prognosis. If the chief medical officer concurs the warden should be notified and the warden shall then notify the prisoner and designated family members of the recall and resentencing procedures. (Penal Code § 1170(e)(4))
- Provides that the prisoner or his or her family member or designee may request consideration for recall and resentencing by contacting the chief medical officer at the prison or the Secretary of CDCR. If the Secretary of CDCR determines that the prisoner satisfies the criteria, the Secretary or BPH may recommend to the court that the prisoner's sentence be recalled. (Penal Code § 1170 (e)(6).)
- States that the Secretary of CDCR shall submit a recommendation for release within 30 days in the case of inmates sentenced to determinate terms. (Penal Code § 1170 (e)(6).)
- Provides that in the case of inmates sentenced to indeterminate terms, the Secretary may make a recommendation to BPH with respect to inmates who have applied for consideration for recall and resentencing. (Penal Code § 1170 (e)(6).)
- Allows the BPH to make an independent judgment as to whether the inmate is eligible and to make findings related thereto before rejecting the request or making a recommendation to the Court. (Penal Code § 1170 (e)(6).)
- Provides that any recommendation for recall submitted to the court by CDCR or BPH shall include one or more medical evaluations, a post-release plan, and findings made as to the prisoner's eligibility. (Penal Code § 1170 (e)(7).)
- Provides that the above compassionate release provisions do not apply to a prisoner sentenced to death or a term of life without the possibility of parole. (Penal Code § 1170 (e) (2) B)
- Establishes the medical parole program whereby any prisoner who the head physician of the institution where the prisoner is located determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if the BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. (Penal Code § 3550(a).)
- Provides that the medical parole law shall not be construed to alter or diminish the rights conferred under the Victim’s Bill of Rights Act of 2008: Marsy’s Law, including notification of victims of parole proceedings. (Penal Code § 3550(b).)
- States that when a physician employed by CDCR who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole, the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the BPH for consideration for medical parole. (Penal Code § 3550(c).)
- Allows the prisoner or his or her family member or designee to independently request consideration for medical parole by contacting the head physician at the prison or CDCR. (Penal Code § 3550(d).)
- Requires CDCR to complete parole plans for inmates referred to the BPH for medical parole consideration. The parole plans shall include, but not be limited to, the inmate’s plan for residency and medical care. (Penal Code § 3550(e).)
- Provides, notwithstanding any other law, that medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia. (Penal Code § 3550(f).)
- Requires the BPH, upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole, to make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto. (Penal Code § 3550(g).)
- Authorizes the BPH or the Division of Adult Parole Operations to impose any reasonable conditions on prisoners subject to medical parole supervision, including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, the parolee may be required to submit to an examination by a physician selected by the BPH for the purpose of diagnosing the parolee’s current medical condition. If the BPH determines, based on that medical examination that the person’s medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the CDCR. (Penal Code § 3550(h).)
- Requires CDCR, at the time a prisoner is placed on medical parole supervision, to ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. (Penal Code § 3550(i).)
- States that medical parole shall not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which medical parole is prohibited by any initiative statute. (Penal Code § 3550(b).)
This bill:
- Provides that the compassionate release provisions do not apply if a person was convicted of first degree murder of a peace officer who was killed while engaged in the performance of his or her duties and the individual knew or should have known that the victim was a peace officer.
- Provides that the compassionate release provisions do not apply if a person was convicted of murder of a peace officer or former peace officer who was intentionally murdered in retaliation for the performance of his or her official duties and the defendant was sentenced after January 1, 2016.
- Provides that a prisoner who was convicted of first degree murder of a peace officer who the prisoner knew or should have known was in the performance of his or her duties is not eligible for medical parole.
- Provides that a prisoner who was convicted of murder of a peace officer or former peace officer who was intentionally murdered in retaliation for the performance of his or her official duties and the defendant was sentenced after January 1, 2016 shall not be eligible for medical parole.
Background
There are two ways that a prisoner may be released in California for medical reasons, compassionate release or medical parole.
With compassionate release:
A recommendation for the recall of a terminally prisoner under P.C. 1170(e) may be initiated by notification to the warden by any department physician who determines that a prisoner has 6 months or less to live. (P.C. 1170(e)(4).) Also, a prisoner or family member or designee may independently request consideration for recall by contacting the prison's chief medical officer or the secretary. If the secretary determines that the prisoner satisfies the criteria for recall, the secretary or board may recommend to the court that the sentence be recalled. For inmates sentenced to determinate terms, the secretary must submit a recommendation for release within 30 days. For those sentenced to indeterminate terms, the secretary may make a recommendation to the board. At its next lawfully noticed meeting, the board must consider this information and make an independent judgment and related findings before rejecting the request or making a recommendation to the court. (P.C. 1170(e)(6).)
A recommendation for recall by the secretary or the board must include one or more medical evaluations, a postrelease plan, and the required findings. (P.C. 1170(e)(7).) Within 10 days of receipt of a positive recommendation, the court must hold a hearing to consider whether recall is appropriate. (P.C. 1170(e)(3).) If possible, the matter must be heard by the judge who sentenced the prisoner. (P.C. 1170(e)(8).)
If the court grants the recall, the department must release the prisoner within 48 hours of receipt of the court's order, unless the prisoner agrees to a longer time period. (P.C. 1170(e)(9).) (3 Witkin Cal. Crim. Law Punishment § 395)
SB 1399 (Leno, Chapter 405, Statutes of 2010) enacted medical parole, which became operative in January of 2011. (Penal Code § 3550.) The law provides that medical parole shall be granted where (1) an inmate has been found by the head physician in the institute where they are housed to be permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care and (2) BPH also makes a determination that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.
Neither compassionate release nor medical parole applies to a person who is sentenced to life without parole.
This bill provides that compassionate release and medical parole do not apply to a person convicted of first degree murder of a peace officer while performing his or her duties or in retaliation for his or her duties.
FISCAL EFFECT: Appropriation: Fiscal Com.: Local:
According to the Senate Appropriations Committee, potential loss of significant future cost savings (General Fund) to the extent formerly eligible inmates convicted of first degree murder of a peace officer would have otherwise been granted medical parole or compassionate release. Based on historical releases, the average annual savings on CDCR custody costs alone for one inmate released from a hospital/nursing home setting on medical parole is $750,000 (General Fund).
California Narcotic Officers’ Association (source)
Association for Los Angeles Deputy Sheriffs
California Association of Code Enforcement Officers
California College and University Police Chiefs Association
California Correctional Peace Officers Association
California Correctional Supervisors Organization
California District Attorneys Association
California Police Chiefs Association
California State Lodge
California State Sheriffs’ Association
California Statewide Law Enforcement Association
Crime Victims United
Fraternal Order of Police
Long Beach Police Officers Association
Los Angeles County Professional Peace Officers Association
Los Angeles Police Protective League
Peace Officers Research Association
Riverside Sheriffs Association
Sacramento County Deputy Sheriffs’ Association
Santa Ana Police Officers Association
OPPOSITION: (Verified 1/21/16)
American Civil Liberties Union
California Attorneys for Criminal Justice
Friends Committee on Legislation of California
Legal Services for Prisoners with Children
ARGUMENTS IN SUPPORT: According to the author:
In 1973, a Mr. Gerald Youngberg took the lives of San Bernardino County Sheriff's Lt. Al Stewart, California Highway Patrol Officer Larry Wetterling, and gas station attendant named Robert Jenkins in execution-style murders. In 2012, Youngberg attempted to receive a medical parole release from prison despite major law enforcement opposition throughout California.
Interestingly, California’s medical parole law exempts from eligibility persons sentenced to death or life without the possibility of parole – a sentence Mr. Youngberg would have certainly received had those punishment options been available when he committed this triple murder in 1973. For a period of time in the 1970s, the sentencing options of the death penalty or life without the possibility of parole were not available.
Although Youngberg was ultimately denied his medical parole, the danger that he or a similarly situated person who has been convicted of murdering a peace officer could be released on either medical parole or compassionate release parole remains very real.
Senate Bill 6 would exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the murder of a peace officer.
The honorable work that our men and women in law enforcement perform on a daily basis is crucial to ensuring that our neighbors and families live in safe communities. Senate Bill 6 is necessary to guarantee that individuals convicted of these heinous crimes serve their entire sentences given to them by a jury of their peers.
ARGUMENTS IN OPPOSITION: The American Civil Liberties Union opposes this bill stating:
[C]urrent law simply allows an inmate to petition the Board of Parole Hearings for release. The Board is fully capable of screening the petitions to determine who is appropriate to be released in the totality of the circumstances, including the offense the person has committed. Given the intent of medical parole is to reduce the financial strain of caring for medically incapacitated inmates, the Legislature should not start excepting out specified offenses for which an inmate is not eligible despite being medically incapacitated.
1/25/16 15:56:42
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SB 6 (Galgiani) Page 3 of 3
SENATE COMMITTEE ON APPROPRIATIONS
Senator Ricardo Lara, Chair
2015 - 2016 Regular Session
SB 6 (Galgiani) - Parole: medical parole: compassionate release
|
|
Version: December 1, 2014 |
Policy Vote: PUB. S. 4 - 1 |
Urgency: No |
Mandate: No |
Hearing Date: April 27, 2015 |
Consultant: Jolie Onodera |
This bill meets the criteria for referral to the Suspense File.
Bill Summary:
SB 6 would provide that an inmate convicted of first degree murder of a peace officer, as specified, is ineligible for compassionate release or medical parole.
Fiscal Impact:
Potential loss of significant future cost savings (General Fund) to the extent formerly eligible inmates convicted of first degree murder of a peace officer would have otherwise been granted medical parole or compassionate release. Based on historical releases, the average annual savings on CDCR custody costs alone for one inmate released from a hospital/nursing home setting on medical parole is $750,000 (General Fund).
Background:
Existing law provides that an inmate under the supervision of the Department of Corrections and Rehabilitation (CDCR) may be released for medical reasons under compassionate release or medical parole. The compassionate release provisions provide that if the Secretary of the CDCR, the Board of Parole Hearings (BPH), or both, determine that the conditions under which a prisoner would be released or receive treatment do not pose a threat to public safety, and the prisoner is terminally ill with an incurable condition and has less than six months to live, or the prisoner is permanently medically incapacitated and requires 24-hour care, the Secretary or the BPH may recommend to the court that the prisoner’s sentence be recalled. (Penal Code (PC) § 1170(e)(1)-(2).)
Existing law establishes the medical parole program whereby any prisoner who the head physician of a CDCR institution determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, resulting in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if the BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. (PC § 3550(a))
Existing law provides that the compassionate release and medical parole provisions do not apply to a prisoner sentenced to death or a term of life without the possibility of parole. Additionally, the medical parole provisions do not apply to a prisoner serving a sentence for which parole, as specified, is prohibited by any initiative statute.
Proposed Law:
This bill would specify that, in addition to the eligibility restrictions under existing law, the following inmates are ineligible for release on medical parole or compassionate release:
A prisoner who was convicted of first degree murder if the victim was a peace officer, as defined in Chapter 4.5 of Title 3, who was killed while engaged in the performance of his or her duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of his or her duties.
The victim was a peace officer, as defined, or had been a peace officer, and was intentionally murdered in retaliation for the performance of his or her official duties, and the defendant was sentenced on or after January 1, 2016.
Prior Legislation:
SB 1284 (Galgiani) 2014 was substantially similar to this measure. This bill stalled in the Assembly Committee on Public Safety.
AB 68 (Maienschein) Chapter 764/2013 requires the CDCR to give notice at least 30 days prior to a medical parole hearing or medical parole release, as specified, to the county of commitment and the county of proposed release.
SB 1399 (Leno) Chapter 405/2010 provides for medical parole of CDCR inmates under the following circumstances: 1) the inmate is found by the head physician to be permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of daily living, resulting in the need for 24-hour care, and 2) the Board of Parole Hearings also makes a determination that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.
Staff Comments:
By placing additional restrictions on the population of prison inmates eligible for medical parole or compassionate release, this bill could result in a significant future loss of General Fund cost savings, potentially in the low millions of dollars annually, that otherwise would have been afforded to CDCR as a result of eliminating the ability to reduce costly security for incapacitated inmates and potentially for the Receiver to receive federal reimbursement through Medi-Cal for medical care in certain circumstances.
Data from CDCR indicates over 500 commitments to state prison annually for the crime of first degree murder. However, specific information on whether the victim was a peace officer is not available for this population. To the extent even one inmate could potentially be impacted by the provisions of this bill would result in a significant loss of cost savings. The Receiver’s Office has indicated costs of about $750,000 (General Fund) per year to guard one inmate, who is not on parole, in a hospital or nursing home setting. As CDCR policy requires an inmate still serving his or her sentence to continue to be guarded, restricting medical parole for additional inmates will restrict CDCR’s ability to remove custodial costs for these inmates. Placing a person on medical parole removes the guarding component, irrespective of whether or not the Receiver’s Office is reimbursed for medical care by the federal government.
The Three-Judge Court, in its February 10, 2014, order granting a two-year extension to reduce the in-state adult inmate population to 137.5 percent of design capacity, ordered the CDCR to immediately implement several population reduction measures, including consulting with the Receiver’s Office to finalize and implement an expanded parole process for medically incapacitated inmates. The provisions of this measure appear inconsistent with the Court’s order.
-- END --
SB 6 (Galgiani ) Page 6 of 6
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Loni Hancock, Chair
2015 - 2016 Regular
Bill No: SB 6 Hearing Date: April 14, 2015
Author: |
Galgiani |
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Version: |
December 1, 2014 |
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Urgency: |
No |
Fiscal: |
Yes |
Consultant: |
MK |
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Subject: Parole: Medical Parole: Compassionate Release
HISTORY
Source: California Narcotic Officers’ Association
Prior Legislation: SB 1284 (Galgiani) failed Assembly Public Safety 2014
Support: Association for Los Angeles Deputy Sheriffs; California Association of Code Enforcement Officers; California College and University Police Chiefs Association; California Correctional Supervisors Organization; California District Attorneys Association; California Police Chiefs Association; California State Lodge, Fraternal Order of Police; California State Sheriffs’ Association; California Statewide Law Enforcement Association; Crime Victims United; Los Angeles County Professional Peace Officers Association; Long Beach Police Officers Association; Los Angeles Police Protective League; Peace Officers Research Association; Riverside Sheriffs Association; Sacramento County Deputy Sheriffs’ Association; Santa Ana Police Officers Association
Opposition: American Civil Liberties Union; Friends Committee on Legislation of California;
Legal Services for Prisoners with Children
PURPOSE
The purpose of this bill is to make an individual who killed a peace officer ineligible for compassionate release or medical parole.
Existing law provides that if the Secretary of the Department of Corrections and Rehabilitation (CDCR), Board of Parole Hearings (BPH), or both determine that the prisoner has six months or less to live, that the conditions under which the prisoner would be released do not pose a threat to public safety and that the prisoner is permanently medically incapacitated, the Secretary of CDCR or BPH may recommend to the court that the prisoner’s sentence be recalled. (Penal Code § 1170 (e)(1) (2).)
Existing law requires the court to hold a hearing to consider whether a prisoner's sentence should be recalled within 10 days of receipt of a positive recommendation by the Secretary of CDCR or BPH. (Penal Code § 1170 (e)(3).)
Existing law provides that any physician employed by CDCR who determines that the prisoner has less than 6 months or less to live shall notify the chief medical officer of the prognosis. If the chief medical officer concurs the warden should be notified and the warden shall then notify the prisoner and designated family members of the recall and resentencing procedures. (Penal Code § 1170(e)(4))
Existing law provides that the prisoner or his or her family member or designee may request consideration for recall and resentencing by contacting the chief medical officer at the prison or the Secretary of CDCR. If the Secretary of CDCR determines that the prisoner satisfies the criteria, the Secretary or BPH may recommend to the court that the prisoner's sentence be recalled. (Penal Code § 1170 (e)(6).)
Existing law states that the Secretary shall submit a recommendation for release within 30 days in the case of inmates sentenced to determinate terms. (Penal Code § 1170 (e)(6).)
Existing law provides that in the case of inmates sentenced to indeterminate terms, the Secretary may make a recommendation to BPH with respect to inmates who have applied for consideration for recall and resentencing. (Penal Code § 1170 (e)(6).)
Existing law allows the BPH to make an independent judgment as to whether the inmate is eligible and to make findings related thereto before rejecting the request or making a recommendation to the Court. (Penal Code § 1170 (e)(6).)
Existing law provides that any recommendation for recall submitted to the court by CDCR or BPH shall include one or more medical evaluations, a post-release plan, and findings made as to the prisoner's eligibility. (Penal Code § 1170 (e)(7).)
Existing law provides that the above compassionate release provisions do not apply to a prisoner sentenced to death or a term of life without the possibility of parole. (Penal Code § 1170 (e) (2) B)
This bill provides that the compassionate release provisions do not apply if a person was convicted of first degree murder of a peace officer who was killed while engaged in the performance of his or her duties and the individual knew or should have known that the victim was a peace officer.
This bill also provides that the compassionate release provisions do not apply if a person was convicted of murder of a peace officer or former peace officer who was intentionally murdered in retaliation for the performance of his or her official duties and the defendant was sentenced after January 1, 2016.
Existing law establishes the medical parole program whereby any prisoner who the head physician of the institution where the prisoner is located determines is permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care, and that incapacitation did not exist at the time of sentencing, shall be granted medical parole if the BPH determines that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety. (Penal Code § 3550(a).)
Existing law provides that the medical parole law shall not be construed to alter or diminish the rights conferred under the Victim’s Bill of Rights Act of 2008: Marsy’s Law, including notification of victims of parole proceedings. (Penal Code § 3550(b).)
Existing law states that when a physician employed by CDCR who is the primary care provider for an inmate identifies an inmate that he or she believes meets the medical criteria for medical parole, the primary care physician shall recommend to the head physician of the institution where the prisoner is located that the prisoner be referred to the BPH for consideration for medical parole. Within 30 days of receiving that recommendation, if the head physician of the institution concurs in the recommendation of the primary care physician, he or she shall refer the matter to BPH using a standardized form and format developed by the department, and if the head physician of the institution does not concur in the recommendation, he or she shall provide the primary care physician with a written explanation of the reasons for denying the referral. (Penal Code § 3550(c).)
Existing law allows the prisoner or his or her family member or designee to independently request consideration for medical parole by contacting the head physician at the prison or CDCR. Within 30 days of receiving the request, the head physician of the institution shall, in consultation with the prisoner’s primary care physician, make a determination regarding whether the prisoner meets the criteria for medical parole as specified and, if the head physician of the institution determines that the prisoner satisfies the criteria, he or she shall refer the matter to BPH using a standardized form and format developed by CDCR. If the head physician of the institution does not concur in the recommendation, he or she shall provide the prisoner or his or her family member or designee with a written explanation of the reasons for denying the application. (Penal Code § 3550(d).)
Existing law requires CDCR to complete parole plans for inmates referred to the BPH for medical parole consideration. The parole plans shall include, but not be limited to, the inmate’s plan for residency and medical care. (Penal Code § 3550(e).)
Existing law provides, notwithstanding any other law, that medical parole hearings shall be conducted by two-person panels consisting of at least one commissioner. In the event of a tie vote, the matter shall be referred to the full board for a decision. Medical parole hearings may be heard in absentia. (Penal Code § 3550(f).)
Existing law requires the BPH, upon receiving a recommendation from the head physician of the institution where a prisoner is located for the prisoner to be granted medical parole, to make an independent judgment regarding whether the conditions under which the inmate would be released pose a reasonable threat to public safety, and make written findings related thereto. (Penal Code § 3550(g).)
Existing law authorizes the BPH or the Division of Adult Parole Operations to impose any reasonable conditions on prisoners subject to medical parole supervision, including, but not limited to, the requirement that the parolee submit to electronic monitoring. As a further condition of medical parole, the parolee may be required to submit to an examination by a physician selected by the BPH for the purpose of diagnosing the parolee’s current medical condition. In the event such an examination takes place, a report of the examination and diagnosis shall be submitted to the BPH by the examining physician. If the BPH determines, based on that medical examination that the person’s medical condition has improved to the extent that the person no longer qualifies for medical parole, the board shall return the person to the custody of the CDCR. (Penal Code § 3550(h).)
Existing law requires CDCR, at the time a prisoner is placed on medical parole supervision, to ensure that the prisoner has applied for any federal entitlement programs for which the prisoner is eligible, and has in his or her possession a discharge medical summary, full medical records, parole medications, and all property belonging to the prisoner that was under the control of the department. Any additional records shall be sent to the prisoner’s forwarding address after release to health care-related parole supervision. (Penal Code § 3550(i).)
Existing law states that medical parole shall not apply to any prisoner sentenced to death or life in prison without possibility of parole or to any inmate who is serving a sentence for which medical parole is prohibited by any initiative statute. (Penal Code § 3550(b).)
This bill provides that a prisoner who was convicted of first degree murder of a peace officer who the prisoner knew or should have known was in the performance of his or her duties is not eligible for medical parole.
This bill also provides that a prisoner who was convicted of murder of a peace officer or former peace officer who was intentionally murdered in retaliation for the performance of his or her official duties and the defendant was sentenced after January 1, 2016 shall not be eligible for medical parole.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
For the past eight 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 February of this year the administration reported that as “of February 11, 2015, 112,993 inmates were housed in the State’s 34 adult institutions, which amounts to 136.6% of design bed capacity, and 8,828 inmates were housed in out-of-state facilities. This current population is now below the court-ordered reduction to 137.5% of design bed capacity.”( Defendants’ February 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).
While significant gains have been made in reducing the prison population, the state now 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 1973, a Mr. Gerald Youngberg took the lives of San Bernardino County Sheriff's Lt. Al Stewart, California Highway Patrol Officer Larry Wetterling, and gas station attendant named Robert Jenkins in execution-style murders. In 2012, Youngberg attempted to receive a medical parole release from prison despite major law enforcement opposition throughout California.
Interestingly, California’s medical parole law exempts from eligibility persons sentenced to death or life without the possibility of parole – a sentence Mr. Youngberg would have certainly received had those punishment options been available when he committed this triple murder in 1973. For a period of time in the 1970s, the sentencing options of the death penalty or life without the possibility of parole were not available.
Although Youngberg was ultimately denied his medical parole, the danger that he or a similarly situated person who has been convicted of murdering a peace officer could be released on either medical parole or compassionate release parole remains very real.
Senate Bill 6 would exempt from medical parole eligibility and compassionate release eligibility a prisoner who was convicted of the murder of a peace officer.
The honorable work that our men and women in law enforcement perform on a daily basis is crucial to ensuring that our neighbors and families live in safe communities. Senate Bill 6 is necessary to guarantee that individuals convicted of these heinous crimes serve their entire sentences given to them by a jury of their peers.
2. Compassionate Release and Medical Parole
There are two ways that a prisoner may be released in California for medical reasons, compassionate release or medical parole.
With compassionate release:
A recommendation for the recall
of a terminally prisoner under P.C. 1170(e) may be initiated by
notification to the warden by any department physician who determines
that a prisoner has 6 months or less to live. (P.C. 1170(e)(4).)
Also, a prisoner or family member or designee may independently
request consideration for recall by contacting the prison's chief
medical officer or the secretary. If the secretary determines that
the prisoner satisfies the criteria for recall, the secretary or
board may recommend to the court that the sentence be recalled. For
inmates sentenced to determinate terms, the secretary must submit a
recommendation for release within 30 days. For those sentenced to
indeterminate terms, the secretary may make a recommendation to the
board. At its next lawfully noticed meeting, the board must consider
this information and make an independent judgment and related
findings before rejecting the request or making a recommendation to
the court. (P.C. 1170(e)(6).)
A recommendation for recall
by the secretary or the board must include one or more medical
evaluations, a postrelease plan, and the required findings. (P.C.
1170(e)(7).) Within 10 days of receipt of a positive recommendation,
the court must hold a hearing to consider whether recall is
appropriate. (P.C. 1170(e)(3).) If possible, the matter must be
heard by the judge who sentenced the prisoner. (P.C. 1170(e)(8).)
If
the court grants the recall, the department must release the prisoner
within 48 hours of receipt of the court's order, unless the prisoner
agrees to a longer time period. (P.C. 1170(e)(9).) (3
Witkin Cal. Crim. Law Punishment § 395)
SB 1399 (Leno) (Chapter 405, Statutes of 2010) enacted medical parole, which became operative in January of 2011. (Penal Code § 3550.) The law provides that medical parole shall be granted where (1) an inmate has been found by the head physician in the institute where they are housed to be permanently medically incapacitated with a medical condition that renders him or her permanently unable to perform activities of basic daily living, and results in the prisoner requiring 24-hour care and (2) the Board of Parole Hearings also makes a determination that the conditions under which the prisoner would be released would not reasonably pose a threat to public safety.
Neither compassionate release nor medical parole applies to a person who is sentenced to life without parole.
3. No Compassionate Release or Medical Parole for Peace Officer Murder
This bill provides that compassionate release and medical parole do not apply to a person convicted of first degree murder of a peace officer while performing his or her duties or in retaliation for his or her duties.
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Bill Author
Bill Co-Author(s):
