Article 1. Initial Sentencing of California Penal Code >> Title 7. >> Part 2. >> Chapter 4.5. >> Article 1.
(a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison or a term pursuant to subdivision (h) of any
specification of three time periods, the court shall sentence the
defendant to one of the terms of imprisonment specified unless the
convicted person is given any other disposition provided by law,
including a fine, jail, probation, or the suspension of imposition or
execution of sentence or is sentenced pursuant to subdivision (b) of
Section 1168 because he or she had committed his or her crime prior
to July 1, 1977. In sentencing the convicted person, the court shall
apply the sentencing rules of the Judicial Council. The court, unless
it determines that there are circumstances in mitigation of the
punishment prescribed, shall also impose any other term that it is
required by law to impose as an additional term. Nothing in this
article shall affect any provision of law that imposes the death
penalty, that authorizes or restricts the granting of probation or
suspending the execution or imposition of sentence, or expressly
provides for imprisonment in the state prison for life, except as
provided in paragraph (2) of subdivision (d). In any case in which
the amount of preimprisonment credit under Section 2900.5 or any
other law is equal to or exceeds any sentence imposed pursuant to
this chapter, except for the remaining portion of mandatory
supervision pursuant to subparagraph (B) of paragraph (5) of
subdivision (h), the entire sentence shall be deemed to have been
served, except for the remaining period of mandatory supervision, and
the defendant shall not be actually delivered to the custody of the
secretary or to the custody of the county correctional administrator.
The court shall advise the defendant that he or she shall serve an
applicable period of parole, postrelease community supervision, or
mandatory supervision, and order the defendant to report to the
parole or probation office closest to the defendant's last legal
residence, unless the in-custody credits equal the total sentence,
including both confinement time and the period of parole, postrelease
community supervision, or mandatory supervision. The sentence shall
be deemed a separate prior prison term or a sentence of imprisonment
in a county jail under subdivision (h) for purposes of Section 667.5,
and a copy of the judgment and other necessary documentation shall
be forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. At least
four days prior to the time set for imposition of judgment, either
party or the victim, or the family of the victim if the victim is
deceased, may submit a statement in aggravation or mitigation. In
determining the appropriate term, the court may consider the record
in the case, the probation officer's report, other reports, including
reports received pursuant to Section 1203.03, and statements in
aggravation or mitigation submitted by the prosecution, the
defendant, or the victim, or the family of the victim if the victim
is deceased, and any further evidence introduced at the sentencing
hearing. The court shall select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision of
law. A term of imprisonment shall not be specified if imposition of
sentence is suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000
or 3000.08 or postrelease community supervision for a period as
provided in Section 3451.
(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the state
prison or county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county correctional
administrator, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings in the case of state
prison inmates, or the county correctional administrator in the case
of county jail inmates, recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as
if he or she had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence. The court
resentencing under this subdivision shall apply the sentencing rules
of the Judicial Council so as to eliminate disparity of sentences and
to promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) (i) When a defendant who was under 18 years of age at the
time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where the
defendant tortured, as described in Section 206, his or her victim
or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
(E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
rights to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
(v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
(G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole or postrelease
community supervision medications, and all property belonging to the
prisoner. After discharge, any additional records shall be sent to
the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(11) The provisions of this subdivision shall be available to an
inmate who is sentenced to a county jail pursuant to subdivision (h).
For purposes of those inmates, "secretary" or "warden" shall mean
the county correctional administrator and "chief medical officer"
shall mean a physician designated by the county correctional
administrator for this purpose.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (A) Unless the court finds that, in the interests of justice,
it is not appropriate in a particular case, the court, when imposing
a sentence pursuant to paragraph (1) or (2), shall suspend execution
of a concluding portion of the term for a period selected at the
court's discretion.
(B) The portion of a defendant's sentenced term that is suspended
pursuant to this paragraph shall be known as mandatory supervision,
and, unless otherwise ordered by the court, shall commence upon
release from physical custody or an alternative custody program,
whichever is later. During the period of mandatory supervision, the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under that supervision,
unless in actual custody related to the sentence imposed by the
court, the defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court. Any time
period which is suspended because a person has absconded shall not be
credited toward the period of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that
added this paragraph shall become effective and operative on January
1, 2015, and shall be applied prospectively to any person sentenced
on or after January 1, 2015.
(i) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date.
(a) (1) The Legislature finds and declares that the purpose
of imprisonment for crime is punishment. This purpose is best served
by terms proportionate to the seriousness of the offense with
provision for uniformity in the sentences of offenders committing the
same offense under similar circumstances. The Legislature further
finds and declares that the elimination of disparity and the
provision of uniformity of sentences can best be achieved by
determinate sentences fixed by statute in proportion to the
seriousness of the offense as determined by the Legislature to be
imposed by the court with specified discretion.
(2) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(3) In any case in which the punishment prescribed by statute for
a person convicted of a public offense is a term of imprisonment in
the state prison, or a term pursuant to subdivision (h), of any
specification of three time periods, the court shall sentence the
defendant to one of the terms of imprisonment specified unless the
convicted person is given any other disposition provided by law,
including a fine, jail, probation, or the suspension of imposition or
execution of sentence or is sentenced pursuant to subdivision (b) of
Section 1168 because he or she had committed his or her crime prior
to July 1, 1977. In sentencing the convicted person, the court shall
apply the sentencing rules of the Judicial Council. The court, unless
it determines that there are circumstances in mitigation of the
punishment prescribed, shall also impose any other term that it is
required by law to impose as an additional term. Nothing in this
article shall affect any provision of law that imposes the death
penalty, that authorizes or restricts the granting of probation or
suspending the execution or imposition of sentence, or expressly
provides for imprisonment in the state prison for life, except as
provided in paragraph (2) of subdivision (d). In any case in which
the amount of preimprisonment credit under Section 2900.5 or any
other provision of law is equal to or exceeds any sentence imposed
pursuant to this chapter, except for a remaining portion of mandatory
supervision imposed pursuant to subparagraph (B) of paragraph (5) of
subdivision (h), the entire sentence shall be deemed to have been
served, except for the remaining period of mandatory supervision, and
the defendant shall not be actually delivered to the custody of the
secretary or the county correctional administrator. The court shall
advise the defendant that he or she shall serve an applicable period
of parole, postrelease community supervision, or mandatory
supervision and order the defendant to report to the parole or
probation office closest to the defendant's last legal residence,
unless the in-custody credits equal the total sentence, including
both confinement time and the period of parole, postrelease community
supervision, or mandatory supervision. The sentence shall be deemed
a separate prior prison term or a sentence of imprisonment in a
county jail under subdivision (h) for purposes of Section 667.5, and
a copy of the judgment and other necessary documentation shall be
forwarded to the secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the court shall order
imposition of the middle term, unless there are circumstances in
aggravation or mitigation of the crime. At least four days prior to
the time set for imposition of judgment, either party or the victim,
or the family of the victim if the victim is deceased, may submit a
statement in aggravation or mitigation to dispute facts in the record
or the probation officer's report, or to present additional facts.
In determining whether there are circumstances that justify
imposition of the upper or lower term, the court may consider the
record in the case, the probation officer's report, other reports,
including reports received pursuant to Section 1203.03, and
statements in aggravation or mitigation submitted by the prosecution,
the defendant, or the victim, or the family of the victim if the
victim is deceased, and any further evidence introduced at the
sentencing hearing. The court shall set forth on the record the facts
and reasons for imposing the upper or lower term. The court may not
impose an upper term by using the fact of any enhancement upon which
sentence is imposed under any provision of law. A term of
imprisonment shall not be specified if imposition of sentence is
suspended.
(c) The court shall state the reasons for its sentence choice on
the record at the time of sentencing. The court shall also inform the
defendant that as part of the sentence after expiration of the term
he or she may be on parole for a period as provided in Section 3000
or 3000.08 or postrelease community supervision for a period as
provided in Section 3451.
(d) (1) When a defendant subject to this section or subdivision
(b) of Section 1168 has been sentenced to be imprisoned in the state
prison or county jail pursuant to subdivision (h) and has been
committed to the custody of the secretary or the county correctional
administrator, the court may, within 120 days of the date of
commitment on its own motion, or at any time upon the recommendation
of the secretary or the Board of Parole Hearings in the case of state
prison inmates, or the county correctional administrator in the case
of county jail inmates, recall the sentence and commitment
previously ordered and resentence the defendant in the same manner as
if he or she had not previously been sentenced, provided the new
sentence, if any, is no greater than the initial sentence. The court
resentencing under this subdivision shall apply the sentencing rules
of the Judicial Council so as to eliminate disparity of sentences and
to promote uniformity of sentencing. Credit shall be given for time
served.
(2) (A) (i) When a defendant who was under 18 years of age at the
time of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where the
defendant tortured, as described in Section 206, his or her victim
or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant's statement that he or she was under 18 years of age at the
time of the crime and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(C) If any of the information required in subparagraph (B) is
missing from the petition, or if proof of service on the prosecuting
agency is not provided, the court shall return the petition to the
defendant and advise the defendant that the matter cannot be
considered without the missing information.
(D) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
(E) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
rights to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
(v) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant's involvement in
the offense.
(vi) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
(vii) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
(viii) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
(G) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in subparagraph (B). Victims, or victim
family members if the victim is deceased, shall be notified of the
resentencing hearing and shall retain their rights to participate in
the hearing.
(H) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant's sentence.
(I) In addition to the criteria in subparagraph (F), the court may
consider any other criteria that the court deems relevant to its
decision, so long as the court identifies them on the record,
provides a statement of reasons for adopting them, and states why the
defendant does or does not satisfy the criteria.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary or the board may
recommend to the court that the prisoner's sentence be recalled.
(2) The court shall have the discretion to resentence or recall if
the court finds that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(A) The prisoner is terminally ill with an incurable condition
caused by an illness or disease that would produce death within six
months, as determined by a physician employed by the department.
(B) The conditions under which the prisoner would be released or
receive treatment do not pose a threat to public safety.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
The Board of Parole Hearings shall make findings pursuant to this
subdivision before making a recommendation for resentence or recall
to the court. This subdivision does not apply to a prisoner sentenced
to death or a term of life without the possibility of parole.
(3) Within 10 days of receipt of a positive recommendation by the
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary shall submit a recommendation for release within 30 days in
the case of inmates sentenced to determinate terms and, in the case
of inmates sentenced to indeterminate terms, the secretary shall make
a recommendation to the Board of Parole Hearings with respect to the
inmates who have applied under this section. The board shall
consider this information and make an independent judgment pursuant
to paragraph (2) and make findings related thereto before rejecting
the request or making a recommendation to the court. This action
shall be taken at the next lawfully noticed board meeting.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole or postrelease
community supervision medications, and all property belonging to the
prisoner. After discharge, any additional records shall be sent to
the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(11) The provisions of this subdivision shall be available to an
inmate who is sentenced to a county jail pursuant to subdivision (h).
For purposes of those inmates, "secretary" or "warden" shall mean
the county correctional administrator and "chief medical officer"
shall mean a physician designated by the county correctional
administrator for this purpose.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(g) A sentence to state prison for a determinate term for which
only one term is specified, is a sentence to state prison under this
section.
(h) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (A) Unless the court finds, in the interest of justice, that
it is not appropriate in a particular case, the court, when imposing
a sentence pursuant to paragraph (1) or (2), shall suspend execution
of a concluding portion of the term for a period selected at the
court's discretion.
(B) The portion of a defendant's sentenced term that is suspended
pursuant to this paragraph shall be known as mandatory supervision,
and, unless otherwise ordered by the court, shall commence upon
release from physical custody or an alternative custody program,
whichever is later. During the period of mandatory supervision, the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under that supervision,
unless in actual custody related to the sentence imposed by the
court, the defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court. Any time
period which is suspended because a person has absconded shall not be
credited toward the period of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that
added this paragraph shall become effective and operative on January
1, 2015, and shall be applied prospectively to any person sentenced
on or after January 1, 2015.
(i) This section shall become operative on January 1, 2017.
(a) Notwithstanding any other law, the Secretary of the
Department of Corrections and Rehabilitation is authorized to offer a
program under which female inmates as specified in subdivision (c),
who are not precluded by subdivision (d), and who have been committed
to state prison may be allowed to participate in a voluntary
alternative custody program as defined in subdivision (b) in lieu of
their confinement in state prison. In order to qualify for the
program an offender need not be confined in an institution under the
jurisdiction of the Department of Corrections and Rehabilitation.
Under this program, one day of participation in an alternative
custody program shall be in lieu of one day of incarceration in the
state prison. Participants in the program shall receive any sentence
reduction credits that they would have received had they served their
sentence in the state prison, and shall be subject to denial and
loss of credit pursuant to subdivision (a) of Section 2932. The
department may enter into contracts with county agencies,
not-for-profit organizations, for-profit organizations, and others in
order to promote alternative custody placements.
(b) As used in this section, an alternative custody program shall
include, but not be limited to, the following:
(1) Confinement to a residential home during the hours designated
by the department.
(2) Confinement to a residential drug or treatment program during
the hours designated by the department.
(3) Confinement to a transitional care facility that offers
appropriate services.
(c) Except as provided by subdivision (d), female inmates
sentenced to state prison for a determinate term of imprisonment
pursuant to Section 1170, and only those persons, are eligible to
participate in the alternative custody program authorized by this
section.
(d) An inmate committed to the state prison who meets any of the
following criteria is not eligible to participate in the alternative
custody program:
(1) The person has a current conviction for a violent felony as
defined in Section 667.5.
(2) The person has a current conviction for a serious felony as
defined in Sections 1192.7 and 1192.8.
(3) The person has a current or prior conviction for an offense
that requires the person to register as a sex offender as provided in
Chapter 5.5 (commencing with Section 290) of Title 9 of Part 1.
(4) The person was screened by the department using a validated
risk assessment tool and determined to pose a high risk to commit a
violent offense.
(5) The person has a history, within the last 10 years, of escape
from a facility while under juvenile or adult custody, including, but
not limited to, any detention facility, camp, jail, or state prison
facility.
(e) An alternative custody program shall include the use of
electronic monitoring, global positioning system devices, or other
supervising devices for the purpose of helping to verify a
participant's compliance with the rules and regulations of the
program. The devices shall not be used to eavesdrop or record any
conversation, except a conversation between the participant and the
person supervising the participant, in which case the recording of
such a conversation is to be used solely for the purposes of voice
identification.
(f) (1) In order to implement alternative custody for the
population specified in subdivision (c), the department shall create,
and the participant shall agree to and fully participate in, an
individualized treatment and rehabilitation plan. When available and
appropriate for the individualized treatment and rehabilitation plan,
the department shall prioritize the use of evidence-based programs
and services that will aid in the successful reentry into society
while she takes part in alternative custody. Case management services
shall be provided to support rehabilitation and to track the
progress and individualized treatment plan compliance of the inmate.
(2) For purposes of this section, "evidence-based practices" means
supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under probation, parole, or postrelease community
supervision.
(g) The secretary shall prescribe reasonable rules and regulations
under which the alternative custody program shall operate. The
department shall adopt regulations necessary to effectuate this
section, including emergency regulations as provided under Section
5058.3 and adopted pursuant to the Administrative Procedure Act
(Chapter 3.5 (commencing with Section 11340) of Part 1 of Division 3
of Title 2 of the Government Code). The participant shall be informed
in writing that she shall comply with the rules and regulations of
the program, including, but not limited to, the following rules:
(1) The participant shall remain within the interior premises of
her residence during the hours designated by the secretary or his or
her designee.
(2) The participant shall be subject to search and seizure by a
peace officer at any time of the day or night, with or without cause.
In addition, the participant shall admit any peace officer
designated by the secretary or his or her designee into the
participant's residence at any time for purposes of verifying the
participant's compliance with the conditions of her detention. Prior
to participation in the alternative custody program, all participants
shall agree in writing to these terms and conditions.
(3) The secretary or his or her designee may immediately retake
the participant into custody to serve the balance of her sentence if
the electronic monitoring or supervising devices are unable for any
reason to properly perform their function at the designated place of
detention, if the participant fails to remain within the place of
detention as stipulated in the agreement, or if the participant for
any other reason no longer meets the established criteria under this
section.
(h) Whenever a peace officer supervising a participant has
reasonable suspicion to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the secretary or his or her designee, and
without a warrant of arrest, retake the participant into custody to
complete the remainder of the original sentence.
(i) This section does not require the secretary or his or her
designee to allow an inmate to participate in this program if it
appears from the record that the inmate has not satisfactorily
complied with reasonable rules and regulations while in custody. An
inmate is eligible for participation in an alternative custody
program only if the secretary or his or her designee concludes that
the inmate meets the criteria for program participation established
under this section and that the inmate's participation is consistent
with any reasonable rules and regulations prescribed by the
secretary.
(1) The rules and regulations and administrative policies of the
program shall be written and shall be given or made available to the
participant upon assignment to the alternative custody program.
(2) The secretary or his or her designee shall have the sole
discretion concerning whether to permit program participation as an
alternative to custody in state prison. A risk and needs assessment
shall be completed on each inmate to assist in the determination of
eligibility for participation and the type of alternative custody.
(3) An inmate's existing psychiatric or medical condition that
requires ongoing care is not a basis for excluding the inmate from
eligibility to participate in an alternative custody program
authorized by this section.
(j) The secretary or his or her designee shall establish a
timeline for the application process. The secretary or his or her
designee shall respond to an applicant within two weeks of her
application to inform the inmate that the application was received,
and to notify the inmate of the eligibility criteria of the program.
The secretary or his or her designee shall provide a written notice
to the inmate of her acceptance or denial into the program. The
individualized treatment and rehabilitation plan described in
subdivision (f) shall be developed, in consultation with the inmate,
after the applicant has been found potentially eligible for
participation in the program and no later than 30 calendar days after
the potential eligibility determination. Except as necessary to
comply with any release notification requirements, the inmate shall
be released to the program no later than seven business days
following notice of acceptance into the program, or if this is not
possible in the case of an inmate to be placed in a residential drug
or treatment program or in a transitional care facility, the first
day a contracted bed becomes available at the requested location. If
the inmate is denied participation in the program, the notice of
denial shall specify the reason the inmate was denied. The secretary
or his or her designee shall maintain a record of the application and
notice of denials for participation. The inmate may appeal the
decision through normal grievance procedures or reapply for
participation in the program 30 days after the notice of the denial.
(k) The secretary or his or her designee shall permit program
participants to seek and retain employment in the community, attend
psychological counseling sessions or educational or vocational
training classes, participate in life skills or parenting training,
utilize substance abuse treatment services, or seek medical and
dental assistance based upon the participant's individualized
treatment and release plan. Participation in other rehabilitative
services and programs may be approved by the case manager if it is
specified as a requirement of the inmate's individualized treatment
and rehabilitative case plan. Willful failure of the program
participant to return to the place of detention not later than the
expiration of any period of time during which she is authorized to be
away from the place of detention pursuant to this section,
unauthorized departures from the place of detention, or tampering
with or disabling, or attempting to tamper with or disable, an
electronic monitoring device shall subject the participant to a
return to custody pursuant to subdivisions (g) and (h). In addition,
participants may be subject to forfeiture of credits pursuant to the
provisions of Section 2932, or to discipline for violation of rules
established by the secretary.
(l) (1) Notwithstanding any other law, the secretary or his or her
designee shall provide the information specified in paragraph (2)
regarding participants in an alternative custody program to the law
enforcement agencies of the jurisdiction in which persons
participating in an alternative custody program reside.
(2) The information required by paragraph (1) shall consist of the
following:
(A) The participant's name, address, and date of birth.
(B) The offense committed by the participant.
(C) The period of time the participant will be subject to an
alternative custody program.
(3) The information received by a law enforcement agency pursuant
to this subdivision may be used for the purpose of monitoring the
impact of an alternative custody program on the community.
(m) It is the intent of the Legislature that the alternative
custody program established under this section maintain the highest
public confidence, credibility, and public safety. In the furtherance
of these standards, the secretary may administer an alternative
custody program pursuant to written contracts with appropriate public
agencies or entities to provide specified program services. No
public agency or entity entering into a contract may itself employ
any person who is in an alternative custody program. The department
shall determine the recidivism rate of each participant in an
alternative custody program.
(n) An inmate participating in this program shall voluntarily
agree to all of the provisions of the program in writing, including
that she may be returned to confinement at any time with or without
cause, and shall not be charged fees or costs for the program.
(o) (1) The secretary or his or her designee shall assist an
individual participating in the alternative custody program in
obtaining health care coverage, including, but not limited to,
assistance with having suspended Medi-Cal benefits reinstated,
applying for Medi-Cal benefits, or obtaining health care coverage
under a private health plan or policy.
(2) To the extent not covered by a participant's health care
coverage, the state shall retain responsibility for the medical,
dental, and mental health needs of individuals participating in the
alternative custody program.
(p) The secretary shall adopt emergency regulations specifically
governing participants in this program.
(q) If a phrase, clause, sentence, or provision of this section or
application thereof to a person or circumstance is held invalid,
that invalidity shall not affect any other phrase, clause, sentence,
or provision or application of this section, which can be given
effect without the invalid phrase, clause, sentence, or provision or
application and to this end the provisions of this section are
declared to be severable.
(a) Notwithstanding any other law, a sheriff or a county
director of corrections is authorized to offer a program under which
inmates as specified in subdivision (c), who are not precluded by
subdivision (d), and who have been committed to a county jail may be
allowed to participate in a voluntary alternative custody program as
defined in subdivision (b) in lieu of their confinement in a county
jail. Under this program, one day of participation is in lieu of one
day of incarceration in a county jail. Participants in the program
shall receive any sentence reduction credits that they would have
received had they served their sentence in a county jail, and are
subject to denial and loss of credit pursuant to subdivision (d) of
Section 4019. The sheriff or the county director of corrections may
enter into contracts with county agencies, not-for-profit
organizations, for-profit organizations, and others in order to
promote alternative custody placements.
(b) As used in this section, an alternative custody program shall
include, but is not limited to, the following:
(1) Confinement to a residential home during the hours designated
by the sheriff or the county director of corrections.
(2) Confinement to a residential drug or treatment program during
the hours designated by the county sheriff or the county director of
corrections.
(3) Confinement to a transitional care facility that offers
appropriate services.
(4) Confinement to a mental health clinic or hospital that offers
appropriate mental health services.
(c) Except as provided by subdivision (d), inmates sentenced to a
county jail for a determinate term of imprisonment pursuant to a
misdemeanor or a felony pursuant to subdivision (h) of Section 1170,
and only those persons, are eligible to participate in the
alternative custody program authorized by this section.
(d) An inmate committed to a county jail who meets any of the
following criteria is not eligible to participate in the alternative
custody program:
(1) The person was screened by the sheriff or the county director
of corrections using a validated risk assessment tool and determined
to pose a high risk to commit a violent offense.
(2) The person has a history, within the last 10 years, of escape
from a facility while under juvenile or adult custody, including, but
not limited to, any detention facility, camp, jail, or state prison
facility.
(3) The person has a current or prior conviction for an offense
that requires the person to register as a sex offender as provided in
Chapter 5.5. (commencing with Section 290) of Title 9 of Part 1.
(e) An alternative custody program may include the use of
electronic monitoring, global positioning system devices, or other
supervising devices for the purpose of helping to verify a
participant's compliance with the rules and regulations of the
program. The devices shall not be used to eavesdrop or record any
conversation, except a conversation between the participant and the
person supervising the participant, in which case the recording of
the conversation is to be used solely for the purposes of voice
identification.
(f) (1) In order to implement alternative custody for the
population specified in subdivision (c), the sheriff or the county
director of corrections shall create, and the participant shall agree
to and fully participate in, an individualized treatment and
rehabilitation plan. When available and appropriate for the
individualized treatment and rehabilitation plan, the sheriff or the
county director of corrections shall prioritize the use of
evidence-based programs and services that will aid in the participant'
s successful reentry into society while he or she takes part in
alternative custody. Case management services shall be provided to
support rehabilitation and to track the progress and individualized
treatment plan compliance of the inmate.
(2) For purposes of this section, "evidence-based practices" means
supervision policies, procedures, programs, and practices
demonstrated by scientific research to reduce recidivism among
individuals under probation, parole, or postrelease community
supervision.
(g) The sheriff or the county director of corrections shall
prescribe reasonable rules to govern the operation of the alternative
custody program. Each participant shall be informed in writing that
he or she is required to comply with the rules of the program,
including, but not limited to, the following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the sheriff or
his or her designee or the county director of corrections or his or
her designee.
(2) The participant shall be subject to search and seizure by a
peace officer at any time of the day or night, with or without cause.
In addition, the participant shall admit any peace officer
designated by the sheriff or his or her designee or the county
director of corrections or his or her designee into the participant's
residence at any time for purposes of verifying the participant's
compliance with the conditions of his or her detention. Prior to
participation in the alternative custody program, each participant
shall agree in writing to these terms and conditions.
(3) The sheriff or his or her designee, or the county director of
corrections or his or her designee, may immediately retake the
participant into custody to serve the balance of his or her sentence
if an electronic monitoring or supervising device is unable for any
reason to properly perform its function at the designated place of
detention, if the participant fails to remain within the place of
detention as stipulated in the agreement, or if the participant for
any other reason no longer meets the criteria under this section.
(h) Whenever a peace officer supervising a participant has
reasonable suspicion to believe that the participant is not complying
with the rules or conditions of the program, or that a required
electronic monitoring device is unable to function properly in the
designated place of confinement, the peace officer may, under general
or specific authorization of the sheriff or his or her designee, or
the county director of corrections or his or her designee, and
without a warrant of arrest, retake the participant into custody to
complete the remainder of the original sentence.
(i) This section shall not be construed to require a sheriff or
his or her designee, or a county director of corrections or his or
her designee, to allow an inmate to participate in this program if it
appears from the record that the inmate has not satisfactorily
complied with reasonable rules and regulations while in custody. An
inmate shall be eligible for participation in an alternative custody
program only if the sheriff or his or her designee or the county
director of corrections or his or her designee concludes that the
inmate meets the criteria for program participation established under
this section and that the inmate's participation is consistent with
any reasonable rules prescribed by the sheriff or the county director
of corrections.
(1) The rules and administrative policies of the program shall be
written and shall be given or made available to each participant upon
assignment to the alternative custody program.
(2) The sheriff or his or her designee or the county director of
corrections or his or her designee shall have the sole discretion
concerning whether to permit program participation as an alternative
to custody in a county jail. A risk and needs assessment shall be
completed on each inmate to assist in the determination of
eligibility for participation and the type of alternative custody.
(j) (1) The sheriff or his or her designee or the county director
of corrections or his or her designee shall permit program
participants to seek and retain employment in the community, attend
psychological counseling sessions or educational or vocational
training classes, participate in life skills or parenting training,
utilize substance abuse treatment services, or seek medical, mental
health, and dental assistance based upon the participant's
individualized treatment and release plan. Participation in other
rehabilitative services and programs may be approved by the case
manager if it is specified as a requirement of the inmate's
individualized treatment and rehabilitative case plan.
(2) Willful failure of the program participant to return to the
place of detention prior to the expiration of any period of time
during which he or she is authorized to be away from the place of
detention, unauthorized departures from the place of detention, or
tampering with or disabling, or attempting to tamper with or disable,
an electronic monitoring device is punishable pursuant to Section
4532 and shall additionally subject the participant to a return to
custody pursuant to subdivisions (g) and (h). In addition,
participants may be subject to forfeiture of credits pursuant to the
provisions of Section 4019, or to discipline for violation of rules
established by the sheriff or the county director of corrections.
(k) (1) Notwithstanding any other law, the sheriff or his or her
designee or the county director of corrections or his or her designee
shall provide the information specified in paragraph (2) regarding
participants in an alternative custody program to the law enforcement
agencies of the jurisdiction in which persons participating in an
alternative custody program reside.
(2) The information required by paragraph (1) shall consist of the
following:
(A) The participant's name, address, and date of birth.
(B) The offense committed by the participant.
(C) The period of time the participant will be subject to an
alternative custody program.
(3) The information received by a law enforcement agency pursuant
to this subdivision may be used for the purpose of monitoring the
impact of an alternative custody program on the community.
(l) It is the intent of the Legislature that the alternative
custody programs established under this section maintain the highest
public confidence, credibility, and public safety. In the furtherance
of these standards, the sheriff or the county director of
corrections may administer an alternative custody program pursuant to
written contracts with appropriate public agencies or entities to
provide specified program services. No public agency or entity
entering into a contract may itself employ any person who is in an
alternative custody program. The sheriff or the county director of
corrections shall determine the recidivism rate of each participant
in an alternative custody program.
(m) An inmate participating in this program shall voluntarily
agree to all of the provisions of the program in writing, including
that he or she may be returned to confinement at any time with or
without cause, and shall not be charged fees or costs for the
program.
(n) If a phrase, clause, sentence, or provision of this section or
application thereof to a person or circumstance is held invalid,
that invalidity shall not affect any other phrase, clause, sentence,
or provision or application of this section, which can be given
effect without the invalid phrase, clause, sentence, or provision or
application and to this end the provisions of this section are
declared to be severable.
(a) Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings
or courts, and whether by judgment rendered by the same or by a
different court, and a consecutive term of imprisonment is imposed
under Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section
12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.
Whenever a court imposes a term of imprisonment in the state prison,
whether the term is a principal or subordinate term, the aggregate
term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in a county jail
pursuant to subdivision (h) of Section 1170.
(b) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(c) In the case of any person convicted of one or more felonies
committed while the person is confined in the state prison or is
subject to reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence
from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in
subdivision (a). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different
proceedings.
(d) When the court imposes a sentence for a felony pursuant to
Section 1170 or subdivision (b) of Section 1168, the court shall also
impose, in addition and consecutive to the offense of which the
person has been convicted, the additional terms provided for any
applicable enhancements. If an enhancement is punishable by one of
three terms, the court shall, in its discretion, impose the term that
best serves the interest of justice, and state the reasons for its
sentence choice on the record at the time of sentencing. The court
shall also impose any other additional term that the court determines
in its discretion or as required by law shall run consecutive to the
term imposed under Section 1170 or subdivision (b) of Section 1168.
In considering the imposition of the additional term, the court shall
apply the sentencing rules of the Judicial Council.
(e) All enhancements shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be
true by the trier of fact.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great
bodily injury.
(g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for being armed with or
using a dangerous or deadly weapon or a firearm.
(h) For any violation of an offense specified in Section 667.6,
the number of enhancements that may be imposed shall not be limited,
regardless of whether the enhancements are pursuant to this section,
Section 667.6, or some other provision of law. Each of the
enhancements shall be a full and separately served term.
(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 January 1, 2017, deletes or extends
that date.
(a) Except as otherwise provided by law, and subject to
Section 654, when any person is convicted of two or more felonies,
whether in the same proceeding or court or in different proceedings
or courts, and whether by judgment rendered by the same or by a
different court, and a consecutive term of imprisonment is imposed
under Sections 669 and 1170, the aggregate term of imprisonment for
all these convictions shall be the sum of the principal term, the
subordinate term, and any additional term imposed for applicable
enhancements for prior convictions, prior prison terms, and Section
12022.1. The principal term shall consist of the greatest term of
imprisonment imposed by the court for any of the crimes, including
any term imposed for applicable specific enhancements. The
subordinate term for each consecutive offense shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction for which a consecutive term of imprisonment
is imposed, and shall include one-third of the term imposed for any
specific enhancements applicable to those subordinate offenses.
Whenever a court imposes a term of imprisonment in the state prison,
whether the term is a principal or subordinate term, the aggregate
term shall be served in the state prison, regardless as to whether or
not one of the terms specifies imprisonment in a county jail
pursuant to subdivision (h) of Section 1170.
(b) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(c) In the case of any person convicted of one or more felonies
committed while the person is confined in the state prison or is
subject to reimprisonment for escape from custody and the law either
requires the terms to be served consecutively or the court imposes
consecutive terms, the term of imprisonment for all the convictions
that the person is required to serve consecutively shall commence
from the time the person would otherwise have been released from
prison. If the new offenses are consecutive with each other, the
principal and subordinate terms shall be calculated as provided in
subdivision (a). This subdivision shall be applicable in cases of
convictions of more than one offense in the same or different
proceedings.
(d) When the court imposes a sentence for a felony pursuant to
Section 1170 or subdivision (b) of Section 1168, the court shall also
impose, in addition and consecutive to the offense of which the
person has been convicted, the additional terms provided for any
applicable enhancements. If an enhancement is punishable by one of
three terms, the court shall impose the middle term unless there are
circumstances in aggravation or mitigation, and state the reasons for
its sentence choice, other than the middle term, on the record at
the time of sentencing. The court shall also impose any other
additional term that the court determines in its discretion or as
required by law shall run consecutive to the term imposed under
Section 1170 or subdivision (b) of Section 1168. In considering the
imposition of the additional term, the court shall apply the
sentencing rules of the Judicial Council.
(e) All enhancements shall be alleged in the accusatory pleading
and either admitted by the defendant in open court or found to be
true by the trier of fact.
(f) When two or more enhancements may be imposed for being armed
with or using a dangerous or deadly weapon or a firearm in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for the infliction of great
bodily injury.
(g) When two or more enhancements may be imposed for the
infliction of great bodily injury on the same victim in the
commission of a single offense, only the greatest of those
enhancements shall be imposed for that offense. This subdivision
shall not limit the imposition of any other enhancements applicable
to that offense, including an enhancement for being armed with or
using a dangerous or deadly weapon or a firearm.
(h) For any violation of an offense specified in Section 667.6,
the number of enhancements that may be imposed shall not be limited,
regardless of whether the enhancements are pursuant to this section,
Section 667.6, or some other provision of law. Each of the
enhancements shall be a full and separately served term.
(i) This section shall become operative on January 1, 2017.
As used in Section 1170.1, the term "specific enhancement"
means an enhancement that relates to the circumstances of the crime.
It includes, but is not limited to, the enhancements provided in
Sections 186.10, 186.11, 186.22, 186.26, 186.33, 192.5, 273.4, 289.5,
290.4, 290.45, 290.46, 347, and 368, subdivisions (a) and (b) of
Section 422.75, paragraphs (2), (3), (4), and (5) of subdivision (a)
of Section 451.1, paragraphs (2), (3), and (4) of subdivision (a) of
Section 452.1, subdivision (g) of Section 550, Sections 593a, 600,
667.8, 667.85, 667.9, 667.10, 667.15, 667.16, 667.17, 674, 675,
12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53,
12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9,
12022.95, 27590, 30600, and 30615 of this code, and in Sections
1522.01 and 11353.1, subdivision (b) of Section 11353.4, Sections
11353.6, 11356.5, 11370.4, 11379.7, 11379.8, 11379.9, 11380.1,
11380.7, 25189.5, and 25189.7 of the Health and Safety Code, and in
Sections 20001 and 23558 of the Vehicle Code, and in Sections 10980
and 14107 of the Welfare and Institutions Code.
Aggregate and consecutive terms for multiple convictions;
Prior conviction as prior felony; Commitment and other enhancements
or punishment.
(a) Notwithstanding any other provision of law, if a defendant has
been convicted of a felony and it has been pled and proved that the
defendant has one or more prior serious and/or violent felony
convictions, as defined in subdivision (b), the court shall adhere to
each of the following:
(1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent felony conviction.
(2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
(3) The length of time between the prior serious and/or violent
felony conviction and the current felony conviction shall not affect
the imposition of sentence.
(4) There shall not be a commitment to any other facility other
than the state prison. Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
(5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
(6) If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to this section.
(7) If there is a current conviction for more than one serious or
violent felony as described in subdivision (b), the court shall
impose the sentence for each conviction consecutive to the sentence
for any other conviction for which the defendant may be consecutively
sentenced in the manner prescribed by law.
(b) Notwithstanding any other provision of law and for the
purposes of this section, a prior serious and/or violent conviction
of a felony shall be defined as:
(1) Any offense defined in subdivision (c) of Section 667.5 as a
violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state. The determination of
whether a prior conviction is a prior serious and/or violent felony
conviction for purposes of this section shall be made upon the date
of that prior conviction and is not affected by the sentence imposed
unless the sentence automatically, upon the initial sentencing,
converts the felony to a misdemeanor. None of the following
dispositions shall affect the determination that a prior serious
and/or violent conviction is a serious and/or violent felony for
purposes of this section:
(A) The suspension of imposition of judgment or sentence.
(B) The stay of execution of sentence.
(C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.
(D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
(2) A prior conviction in another jurisdiction for an offense
that, if committed in California, is punishable by imprisonment in
the state prison shall constitute a prior conviction of a particular
serious and/or violent felony if the prior conviction in the other
jurisdiction is for an offense that includes all of the elements of
the particular violent felony as defined in subdivision (c) of
Section 667.5 or serious felony as defined in subdivision (c) of
Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior serious
and/or violent felony conviction for the purposes of sentence
enhancement if:
(A) The juvenile was sixteen years of age or older at the time he
or she committed the prior offense, and
(B) The prior offense is
(i) listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, or
(ii) listed in this subdivision as a serious and/or violent
felony, and
(C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law, and
(D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
(c) For purposes of this section, and in addition to any other
enhancements or punishment provisions which may apply, the following
shall apply where a defendant has one or more prior serious and/or
violent felony convictions:
(1) If a defendant has one prior serious and/or violent felony
conviction as defined in subdivision (b) that has been pled and
proved, the determinate term or minimum term for an indeterminate
term shall be twice the term otherwise provided as punishment for the
current felony conviction.
(2) (A) Except as provided in subparagraph (C), if a defendant has
two or more prior serious and/or violent felony convictions, as
defined in subdivision (b), that have been pled and proved, the term
for the current felony conviction shall be an indeterminate term of
life imprisonment with a minimum term of the indeterminate sentence
calculated as the greatest of:
(i) three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior
serious and/or violent felony convictions, or
(ii) twenty-five years or
(iii) the term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) of
paragraph (2) of this subdivision shall be served consecutive to any
other term of imprisonment for which a consecutive term may be
imposed by law. Any other term imposed subsequent to any
indeterminate term described in subparagraph (A) of paragraph (2) of
this subdivision shall not be merged therein but shall commence at
the time the person would otherwise have been released from prison.
(C) If a defendant has two or more prior serious and/or violent
felony convictions as defined in subdivision (c) of Section 667.5 or
subdivision (c) of Section 1192.7 that have been pled and proved, and
the current offense is not a felony described in paragraph (1) of
subdivision (b) of this section, the defendant shall be sentenced
pursuant to paragraph (1) of subdivision (c) of this section, unless
the prosecution pleads and proves any of the following:
(i) The current offense is a controlled substance charge, in which
an allegation under Section 11370.4 or 11379.8 of the Health and
Safety Code was admitted or found true.
(ii) The current offense is a felony sex offense, defined in
subdivision (d) of Section 261.5 or Section 262, or any felony
offense that results in mandatory registration as a sex offender
pursuant to subdivision (c) of Section 290 except for violations of
Sections 266 and 285, paragraph (1) of subdivision (b) and
subdivision (e) of Section 286, paragraph (1) of subdivision (b) and
subdivision (e) of Section 288a, Section 314, and Section 311.11.
(iii) During the commission of the current offense, the defendant
used a firearm, was armed with a firearm or deadly weapon, or
intended to cause great bodily injury to another person.
(iv) The defendant suffered a prior conviction, as defined in
subdivision (b) of this section, for any of the following serious
and/or violent felonies:
(I) A "sexually violent offense" as defined by subdivision (b) of
Section 6600 of the Welfare and Institutions Code.
(II) Oral copulation with a child who is under 14 years of age,
and who is more than 10 years younger than he or she as defined by
Section 288a, sodomy with another person who is under 14 years of age
and more than 10 years younger than he or she as defined by Section
286 or sexual penetration with another person who is under 14 years
of age, and who is more than 10 years younger than he or she, as
defined by Section 289.
(III) A lewd or lascivious act involving a child under 14 years of
age, in violation of Section 288.
(IV) Any homicide offense, including any attempted homicide
offense, defined in Sections 187 to 191.5, inclusive.
(V) Solicitation to commit murder as defined in Section 653f.
(VI) Assault with a machine gun on a peace officer or firefighter,
as defined in paragraph (3) of subdivision (d) of Section 245.
(VII) Possession of a weapon of mass destruction, as defined in
paragraph (1) of subdivision (a) of Section 11418.
(VIII) Any serious and/or violent felony offense punishable in
California by life imprisonment or death.
(d) (1) Notwithstanding any other provision of law, this section
shall be applied in every case in which a defendant has one or more
prior serious and/or violent felony convictions as defined in this
section. The prosecuting attorney shall plead and prove each prior
serious and/or violent felony conviction except as provided in
paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior
serious and/or violent felony conviction allegation in the
furtherance of justice pursuant to Section 1385, or if there is
insufficient evidence to prove the prior serious and/or violent
conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior serious and/or violent
felony conviction, the court may dismiss or strike the allegation.
Nothing in this section shall be read to alter a court's authority
under Section 1385.
(e) Prior serious and/or violent felony convictions shall not be
used in plea bargaining, as defined in subdivision (b) of Section
1192.7. The prosecution shall plead and prove all known prior serious
and/or violent felony convictions and shall not enter into any
agreement to strike or seek the dismissal of any prior serious and/or
violent felony conviction allegation except as provided in paragraph
(2) of subdivision (d).
(f) If any provision of subdivisions (a) to (e), inclusive, or of
Section 1170.126, or the application thereof to any person or
circumstance is held invalid, that invalidity shall not affect other
provisions or applications of those subdivisions which can be given
effect without the invalid provision or application, and to this end
the provisions of those subdivisions are severable.
(g) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
Notwithstanding Section 2 of Proposition 184, as adopted
at the November 8, 1994, General Election, for all offenses committed
on or after November 7, 2012, all references to existing statutes in
Sections 1170.12 and 1170.126 are to those sections as they existed
on November 7, 2012.
(a) The resentencing provisions under this section and
related statutes are intended to apply exclusively to persons
presently serving an indeterminate term of imprisonment pursuant to
paragraph (2) of subdivision (e) of Section 667 or paragraph (2) of
subdivision (c) of Section 1170.12, whose sentence under this act
would not have been an indeterminate life sentence.
(b) Any person serving an indeterminate term of life imprisonment
imposed pursuant to paragraph (2) of subdivision (e) of Section 667
or paragraph (2) of subdivision (c) of Section 1170.12 upon
conviction, whether by trial or plea, of a felony or felonies that
are not defined as serious and/or violent felonies by subdivision (c)
of Section 667.5 or subdivision (c) of Section 1192.7, may file a
petition for a recall of sentence, within two years after the
effective date of the act that added this section or at a later date
upon a showing of good cause, before the trial court that entered the
judgment of conviction in his or her case, to request resentencing
in accordance with the provisions of subdivision (e) of Section 667,
and subdivision (c) of Section 1170.12, as those statutes have been
amended by the act that added this section.
(c) No person who is presently serving a term of imprisonment for
a "second strike" conviction imposed pursuant to paragraph (1) of
subdivision (e) of Section 667 or paragraph (1) of subdivision (c) of
Section 1170.12, shall be eligible for resentencing under the
provisions of this section.
(d) The petition for a recall of sentence described in subdivision
(b) shall specify all of the currently charged felonies, which
resulted in the sentence under paragraph (2) of subdivision (e) of
Section 667 or paragraph (2) of subdivision (c) of Section 1170.12,
or both, and shall also specify all of the prior convictions alleged
and proved under subdivision (d) of Section 667 and subdivision (b)
of Section 1170.12.
(e) An inmate is eligible for resentencing if:
(1) The inmate is serving an indeterminate term of life
imprisonment imposed pursuant to paragraph (2) of subdivision (e) of
Section 667 or subdivision (c) of Section 1170.12 for a conviction of
a felony or felonies that are not defined as serious and/or violent
felonies by subdivision (c) of Section 667.5 or subdivision (c) of
Section 1192.7.
(2) The inmate's current sentence was not imposed for any of the
offenses appearing in clauses (i) to (iii), inclusive, of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667
or clauses (i) to (iii), inclusive, of subparagraph (C) of paragraph
(2) of subdivision (c) of Section 1170.12.
(3) The inmate has no prior convictions for any of the offenses
appearing in clause (iv) of subparagraph (C) of paragraph (2) of
subdivision (e) of Section 667 or clause (iv) of subparagraph (C) of
paragraph (2) of subdivision (c) of Section 1170.12.
(f) Upon receiving a petition for recall of sentence under this
section, the court shall determine whether the petitioner satisfies
the criteria in subdivision (e). If the petitioner satisfies the
criteria in subdivision (e), the petitioner shall be resentenced
pursuant to paragraph (1) of subdivision (e) of Section 667 and
paragraph (1) of subdivision (c) of Section 1170.12 unless the court,
in its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety.
(g) In exercising its discretion in subdivision (f), the court may
consider:
(1) The petitioner's criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes;
(2) The petitioner's disciplinary record and record of
rehabilitation while incarcerated; and
(3) Any other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.
(h) Under no circumstances may resentencing under this act result
in the imposition of a term longer than the original sentence.
(i) Notwithstanding subdivision (b) of Section 977, a defendant
petitioning for resentencing may waive his or her appearance in court
for the resentencing, provided that the accusatory pleading is not
amended at the resentencing, and that no new trial or retrial of the
individual will occur. The waiver shall be in writing and signed by
the defendant.
(j) If the court that originally sentenced the defendant is not
available to resentence the defendant, the presiding judge shall
designate another judge to rule on the defendant's petition.
(k) Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the defendant.
(l) Nothing in this and related sections is intended to diminish
or abrogate the finality of judgments in any case not falling within
the purview of this act.
(m) A resentencing hearing ordered under this act shall constitute
a "post-conviction release proceeding" under paragraph (7) of
subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law).
Notwithstanding subdivision (a) of Section 1170.1 which
provides for the imposition of a subordinate term for a consecutive
offense of one-third of the middle term of imprisonment, if a person
is convicted pursuant to subdivision (b) of Section 139, the
subordinate term for each consecutive offense shall consist of the
full middle term.
Notwithstanding subdivision (a) of Section 1170.1 which
provides for the imposition of a subordinate term for a consecutive
offense of one-third of the middle term of imprisonment, if a person
is convicted of a felony, and of an additional felony that is a
violation of Section 136.1 or 137 and that was committed against the
victim of, or a witness or potential witness with respect to, or a
person who was about to give material information pertaining to, the
first felony, or of a felony violation of Section 653f that was
committed to dissuade a witness or potential witness to the first
felony, the subordinate term for each consecutive offense that is a
felony described in this section shall consist of the full middle
term of imprisonment for the felony for which a consecutive term of
imprisonment is imposed, and shall include the full term prescribed
for any enhancements imposed for being armed with or using a
dangerous or deadly weapon or a firearm, or for inflicting great
bodily injury.
In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
subdivision (a) of Section 192, whether or not the offenses were
committed during a single transaction.
(a) When a person is prosecuted for a criminal offense
committed while he or she was under 18 years of age and the
prosecution was lawfully initiated in a court of criminal
jurisdiction without a prior finding that the person is not a fit and
proper subject to be dealt with under the juvenile court law, upon
subsequent conviction for any criminal offense, the person shall be
subject to the same sentence as an adult convicted of the identical
offense, in accordance with subdivision (a) of Section 1170.19,
except under the circumstances described in subdivision (b), (c), or
(d).
(b) Where the conviction is for the type of offense which, in
combination with the person's age at the time the offense was
committed, makes the person eligible for transfer to a court of
criminal jurisdiction, pursuant to a rebuttable presumption that the
person is not a fit and proper subject to be dealt with under the
juvenile court law, and the prosecution for the offense could not
lawfully be initiated in a court of criminal jurisdiction, then
either of the following shall apply:
(1) The person shall be subject to the same sentence as an adult
convicted of the identical offense in accordance with the provisions
set forth in subdivision (a) of Section 1170.19, unless the person
prevails upon a motion brought pursuant to paragraph (2).
(2) Upon a motion brought by the person, the court shall order the
probation department to prepare a written social study and
recommendation concerning the person's fitness to be dealt with under
the juvenile court law and the court shall either conduct a fitness
hearing or suspend proceedings and remand the matter to the juvenile
court to prepare a social study and make a determination of fitness.
The person shall receive a disposition under the juvenile court law
only if the person demonstrates, by a preponderance of the evidence,
that he or she is a fit and proper subject to be dealt with under the
juvenile court law, based upon each of the following five criteria:
(A) The degree of criminal sophistication exhibited by the person.
This may include, but is not limited to, giving weight to the person'
s age, maturity, intellectual capacity, and physical, mental, and
emotional health at the time of the offense, the person's impetuosity
or failure to appreciate risks and consequences of criminal
behavior, the effect of familial, adult, or peer pressure on the
person's actions, and the effect of the person's family and community
environment and childhood trauma on the person's criminal
sophistication.
(B) Whether the person can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction. This may include,
but is not limited to, giving weight to the minor's potential to grow
and mature.
(C) The person's previous delinquent history. This may include,
but is not limited to, giving weight to the seriousness of the person'
s previous delinquent history and the effect of the person's family
and community environment and childhood trauma on the person's
previous delinquent behavior.
(D) Success of previous attempts by the juvenile court to
rehabilitate the person. This may include, but is not limited to,
giving weight to an analysis of the adequacy of the services
previously provided to address the person's needs.
(E) The circumstances and gravity of the offense for which the
person has been convicted. This may include, but is not limited to,
giving weight to the actual behavior of the person, the mental state
of the person, the person's degree of involvement in the crime, the
level of harm actually caused by the person, and the person's mental
and emotional development.
If the court conducting the fitness hearing finds that the person
is not a fit and proper subject for juvenile court jurisdiction, then
the person shall be sentenced by the court where he or she was
convicted, in accordance with paragraph (1). If the court conducting
the hearing on fitness finds that the person is a fit and proper
subject for juvenile court jurisdiction, then the person shall be
subject to a disposition in accordance with subdivision (b) of
Section 1170.19.
(c) Where the conviction is for the type of offense which, in
combination with the person's age at the time the offense was
committed, makes the person eligible for transfer to a court of
criminal jurisdiction, pursuant to a rebuttable presumption that the
person is a fit and proper subject to be dealt with under the
juvenile court law, then the person shall be sentenced as follows:
(1) The person shall be subject to a disposition under the
juvenile court law, in accordance with the provisions of subdivision
(b) of Section 1170.19, unless the district attorney prevails upon a
motion, as described in paragraph (2).
(2) Upon a motion brought by the district attorney, the court
shall order the probation department to prepare a written social
study and recommendation concerning whether the person is a fit and
proper subject to be dealt with under the juvenile court law. The
court shall either conduct a fitness hearing or suspend proceedings
and remand the matter to the juvenile court for a determination of
fitness. The person shall be subject to a juvenile disposition under
the juvenile court law unless the district attorney demonstrates, by
a preponderance of the evidence, that the person is not a fit and
proper subject to be dealt with under the juvenile court law, based
upon the five criteria set forth in paragraph (2) of subdivision (b).
If the person is found to be not a fit and proper subject to be
dealt with under the juvenile court law, then the person shall be
sentenced in the court where he or she was convicted, in accordance
with the provisions set forth in subdivision (a) of Section 1170.19.
If the person is found to be a fit and proper subject to be dealt
with under the juvenile court law, the person shall be subject to a
disposition, in accordance with the provisions of subdivision (b) of
Section 1170.19.
(d) Where the conviction is for the type of offense which, in
combination with the person's age, does not make the person eligible
for transfer to a court of criminal jurisdiction, the person shall be
subject to a disposition in accordance with the provisions of
subdivision (b) of Section 1170.19.
(a) A person currently serving a sentence for a
conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under the act that added this
section ("this act") had this act been in effect at the time of the
offense may petition for a recall of sentence before the trial court
that entered the judgment of conviction in his or her case to request
resentencing in accordance with Sections 11350, 11357, or 11377 of
the Health and Safety Code, or Section 459.5, 473, 476a, 490.2, 496,
or 666 of the Penal Code, as those sections have been amended or
added by this act.
(b) Upon receiving a petition under subdivision (a), the court
shall determine whether the petitioner satisfies the criteria in
subdivision (a). If the petitioner satisfies the criteria in
subdivision (a), the petitioner's felony sentence shall be recalled
and the petitioner resentenced to a misdemeanor pursuant to Sections
11350, 11357, or 11377 of the Health and Safety Code, or Section
459.5, 473, 476a, 490.2, 496, or 666 of the Penal Code, those
sections have been amended or added by this act, unless the court, in
its discretion, determines that resentencing the petitioner would
pose an unreasonable risk of danger to public safety. In exercising
its discretion, the court may consider all of the following:
(1) The petitioner's criminal conviction history, including the
type of crimes committed, the extent of injury to victims, the length
of prior prison commitments, and the remoteness of the crimes.
(2) The petitioner's disciplinary record and record of
rehabilitation while incarcerated.
(3) Any other evidence the court, within its discretion,
determines to be relevant in deciding whether a new sentence would
result in an unreasonable risk of danger to public safety.
(c) As used throughout this Code, "unreasonable risk of danger to
public safety" means an unreasonable risk that the petitioner will
commit a new violent felony within the meaning of clause (iv) of
subparagraph (C) of paragraph (2) of subdivision (e) of Section 667.
(d) A person who is resentenced pursuant to subdivision (b) shall
be given credit for time served and shall be subject to parole for
one year following completion of his or her sentence, unless the
court, in its discretion, as part of its resentencing order, releases
the person from parole. Such person is subject to Section 3000.08
parole supervision by the Department of Corrections and
Rehabilitation and the jurisdiction of the court in the county in
which the parolee is released or resides, or in which an alleged
violation of supervision has occurred, for the purpose of hearing
petitions to revoke parole and impose a term of custody.
(e) Under no circumstances may resentencing under this section
result in the imposition of a term longer than the original sentence.
(f) A person who has completed his or her sentence for a
conviction, whether by trial or plea, of a felony or felonies who
would have been guilty of a misdemeanor under this act had this act
been in effect at the time of the offense, may file an application
before the trial court that entered the judgment of conviction in his
or her case to have the felony conviction or convictions designated
as misdemeanors.
(g) If the application satisfies the criteria in subdivision (f ),
the court shall designate the felony offense or offenses as a
misdemeanor.
(h) Unless requested by the applicant, no hearing is necessary to
grant or deny an application filed under subsection (f ).
(i) The provisions of this section shall not apply to persons who
have one or more prior convictions for an offense specified in clause
(iv) of subparagraph (C) of paragraph (2) of subdivision (e) of
Section 667 or for an offense requiring registration pursuant to
subdivision (c) of Section 290.
(j) Any petition or application under this section shall be filed
within three years after the effective date of the act that added
this section or at a later date upon a showing of good cause.
(k) Any felony conviction that is recalled and resentenced under
subdivision (b) or designated as a misdemeanor under subdivision (g)
shall be considered a misdemeanor for all purposes, except that such
resentencing shall not permit that person to own, possess, or have in
his or her custody or control any firearm or prevent his or her
conviction under Chapter 2 (commencing with Section 29800) of
Division 9 of Title 4 of Part 6.
(l) If the court that originally sentenced the petitioner is not
available, the presiding judge shall designate another judge to rule
on the petition or application.
(m) Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the petitioner or
applicant.
(n) Nothing in this and related sections is intended to diminish
or abrogate the finality of judgments in any case not falling within
the purview of this act.
(o) A resentencing hearing ordered under this act shall constitute
a "post-conviction release proceeding" under paragraph (7) of
subdivision (b) of Section 28 of Article I of the California
Constitution (Marsy's Law).
(a) Notwithstanding any other provision of law, the
following shall apply to a person sentenced pursuant to Section
1170.17.
(1) The person may be committed to the Youth Authority only to the
extent the person meets the eligibility criteria set forth in
Section 1732.6 of the Welfare and Institutions Code.
(2) The person shall not be housed in any facility under the
jurisdiction of the Department of Corrections, if the person is under
the age of 16 years.
(3) The person shall have his or her criminal court records
accorded the same degree of public access as the records pertaining
to the conviction of an adult for the identical offense.
(4) Subject to the knowing and intelligent consent of both the
prosecution and the person being sentenced pursuant to this section,
the court may order a juvenile disposition under the juvenile court
law, in lieu of a sentence under this code, upon a finding that such
an order would serve the best interests of justice, protection of the
community, and the person being sentenced. Prior to ordering a
juvenile disposition, the court shall cause to be received into
evidence a social study by the probation officer, prepared pursuant
to Section 706 of the Welfare and Institutions Code, and shall state
that the social study made by the probation officer has been read and
considered by the court.
(b) Notwithstanding any other provision of law, the following
shall apply to a person who is eligible to receive a juvenile
disposition pursuant to Section 1170.17.
(1) The person shall be entitled a hearing on the proper
disposition of the case, conducted in accordance with the provisions
of Section 706 of the Welfare and Institutions Code. The court in
which the conviction occurred shall order the probation department to
prepare a written social study and recommendation concerning the
proper disposition of the case, prior to conducting the hearing or
remand the matter to the juvenile court for purposes of preparing the
social study, conducting the disposition hearing pursuant to Section
706 of the Welfare and Institutions Code, and making a disposition
order under the juvenile court law.
(2) The person shall have his or her conviction deemed to be a
finding of delinquency wardship under Section 602 of the Welfare and
Institutions Code.
(3) The person shall have his or her criminal court records
accorded the same degree of confidentiality as if the matter had been
initially prosecuted as a delinquency petition in the juvenile
court.
(4) Subject to the knowing and intelligent consent of both the
prosecution and the person being sentenced pursuant to this section,
the court may impose an adult sentence under this code, in lieu of
ordering a juvenile disposition under the juvenile court law, upon a
finding that such an order would serve the best interests of justice,
protection of the community, and the person being sentenced. Prior
to ordering an adult sentence, the court shall cause to be received
into evidence a social study by the probation officer, prepared
pursuant to Section 706 of the Welfare and Institutions Code, and
shall state that the social study prepared by the probation officer
has been read and considered by the court.
(a) In the case of any inmate who committed a felony prior
to July 1, 1977, who would have been sentenced under Section 1170 if
he or she had committed it after July 1, 1977, the Board of Prison
Terms shall determine what the length of time of imprisonment would
have been under Section 1170 without consideration of good-time
credit and utilizing the middle term of the offense bearing the
longest term of imprisonment of which the prisoner was convicted
increased by any enhancements justified by matters found to be true
and which were imposed by the court at the time of sentencing for
such felony. These matters include: being armed with a deadly or
dangerous weapon as specified in Section 211a, 460, 3024, or 12022
prior to July 1, 1977, which may result in a one-year enhancement
pursuant to the provisions of Section 12022; using a firearm as
specified in Section 12022.5 prior to July 1, 1977, which may result
in a two-year enhancement pursuant to the provisions of Section
12022.5; infliction of great bodily injury as specified in Section
213, 264, or 461 prior to July 1, 1977, which may result in a
three-year enhancement pursuant to the provisions of Section 12022.7;
any prior felony conviction as specified in any statute prior to
July 1, 1977, which prior felony conviction is the equivalent of a
prior prison term as defined in Section 667.5, which may result in
the appropriate enhancement pursuant to the provisions of Section
667.5; and any consecutive sentence.
(b) If the calculation required under subdivision (a) is less than
the time to be served prior to a release date set prior to July 1,
1977, or if a release date had not been set, the Board of Prison
Terms shall establish the prisoner's parole date, subject to
subdivision (d), on the date calculated under subdivision (a) unless
at least two of the commissioners of the Board of Prison Terms after
reviewing the prisoner's file, determine that due to the number of
crimes of which the prisoner was convicted, or due to the number of
prior convictions suffered by the prisoner, or due to the fact that
the prisoner was armed with a deadly weapon when the crime was
committed, or used a deadly weapon during the commission of the
crime, or inflicted or attempted to inflict great bodily injury on
the victim of the crime, the prisoner should serve a term longer than
that calculated in subdivision (a), in which event the prisoner
shall be entitled to a hearing before a panel consisting of at least
two commissioners of the Board of Prison Terms as provided for in
Section 3041.5. The Board of Prison Terms shall notify each prisoner
who is scheduled for such a hearing within 90 days of July 1, 1977,
or within 90 days of the date the prisoner is received by or returned
to the custody of the Department of Corrections, whichever is later.
The hearing shall be held before October 1, 1978, or within 120 days
of receipt of the prisoner, whichever is later. It is the intent of
the Legislature that the hearings provided for in this subdivision
shall be accomplished in the most expeditious manner possible. At the
hearing the prisoner shall be entitled to be represented by legal
counsel, a release date shall be set, and the prisoner shall be
informed in writing of the extraordinary factors specifically
considered determinative and on what basis the release date has been
calculated. In fixing a term under this section the board shall be
guided by, but not limited to, the term which reasonably could be
imposed on a person who committed a similar offense under similar
circumstances on or after July 1, 1977, and further, the board shall
be guided by the following finding and declaration hereby made by the
Legislature: that the necessity to protect the public from
repetition of extraordinary crimes of violence against the person is
the paramount consideration.
(c) Nothing in this section shall be deemed to keep an inmate in
the custody of the Department of Corrections for a period of time
longer than he would have been kept in its custody under the
provisions of law applicable to him prior to July 1, 1977. Nothing in
this section shall be deemed to require the release of an inmate
sentenced to consecutive sentences under the provisions of law
applicable to him prior to July 1, 1977, earlier than if he had been
sentenced to concurrent sentences.
(d) In the case of any prisoner who committed a felony prior to
July 1, 1977, who would have been sentenced under Section 1170 if the
felony was committed on or after July 1, 1977, the good behavior and
participation provisions of Article 2.5 (commencing with Section
2930) of Chapter 7 of Title 1 of Part 3 shall apply from July 1,
1977, and thereafter.
(e) In the case of any inmate who committed a felony prior to July
1, 1977, who would have been sentenced under Section 1168 if the
felony was committed on or after July 1, 1977, the Board of Prison
Terms shall provide for release from prison as provided for by this
code.
(f) In the case of any inmate who committed a felony prior to July
1, 1977, the length, conditions, revocation, and other incidents of
parole shall be the same as if the prisoner had been sentenced for an
offense committed on or after July 1, 1977.
(g) Nothing in this chapter shall affect the eligibility for
parole under Article 3 (commencing with Section 3040) of Chapter 8 of
Title 1 of Part 3 of an inmate sentenced pursuant to Section 1168 as
operative prior to July 1, 1977, for a period of parole as specified
in subdivision (b) of Section 3000.
(h) In fixing a term under this section, the Board of Prison Terms
shall utilize the terms of imprisonment as provided in Chapter 1139
of the Statutes of 1976 and Chapter 165 of the Statutes of 1977.
The Judicial Council shall seek to promote uniformity in
sentencing under Section 1170 by:
(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court's
decision to:
(1) Grant or deny probation.
(2) Impose the lower, middle, or upper prison term.
(3) Impose the lower, middle, or upper term pursuant to paragraph
(1) or (2) of subdivision (h) of Section 1170.
(4) Impose concurrent or consecutive sentences.
(5) Determine whether or not to impose an enhancement where that
determination is permitted by law.
(6) Deny a period of mandatory supervision in the interests of
justice under paragraph (5) of subdivision (h) of Section 1170 or
determine the appropriate period and conditions of mandatory
supervision. The rules implementing this paragraph shall be adopted
no later than January 1, 2015.
(b) The adoption of rules standardizing the minimum content and
the sequential presentation of material in probation officer reports
submitted to the court regarding probation and mandatory supervision
under paragraph (5) of subdivision (h) of Section 1170.
(c) 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 January 1, 2017, deletes or extends
that date.
The Judicial Council shall seek to promote uniformity in
sentencing under Section 1170 by:
(a) The adoption of rules providing criteria for the consideration
of the trial judge at the time of sentencing regarding the court's
decision to:
(1) Grant or deny probation.
(2) Impose the lower or upper prison term.
(3) Impose the lower or upper term pursuant to paragraph (1) or
(2) of subdivision (h) of Section 1170.
(4) Impose concurrent or consecutive sentences.
(5) Determine whether or not to impose an enhancement where that
determination is permitted by law.
(6) Deny a period of mandatory supervision in the interests of
justice under paragraph (5) of subdivision (h) of Section 1170 or
determine the appropriate period and conditions of mandatory
supervision. The rules implementing this paragraph shall be adopted
no later than January 1, 2015.
(b) The adoption of rules standardizing the minimum content and
the sequential presentation of material in probation officer reports
submitted to the court regarding probation and mandatory supervision
under paragraph (5) of subdivision (h) of Section 1170.
(c) This section shall become operative on January 1, 2017.
The Judicial Council shall collect and analyze relevant
information relating to sentencing practices in this state and other
jurisdictions. Such information shall be taken into consideration by
the Judicial Council in the adoption of rules pursuant to Section
1170.3.
The Judicial Council shall collect data on criminal cases
statewide relating to the disposition of those cases according to the
race and ethnicity of the defendant, and report annually thereon to
the Legislature beginning no later than January 1, 1999. It is the
intent of the Legislature to appropriate funds to the Judicial
Council for this purpose.
The Judicial Council shall conduct annual sentencing
institutes for trial court judges pursuant to Section 68551 of the
Government Code, toward the end of assisting the judge in the
imposition of appropriate sentences.
Robbery or attempted robbery for the purpose of obtaining
any controlled substance, as defined in Division 10 (commencing with
Section 11000) of the Health and Safety Code, when committed against
a pharmacist, pharmacy employee, or other person lawfully possessing
controlled substances, shall be considered a circumstance in
aggravation of the crime in imposing a term under subdivision (b) of
Section 1170.
The fact that a person who commits a violation of Section
288 has used obscene or harmful matter to induce, persuade, or
encourage the minor to engage in a lewd or lascivious act shall be
considered a circumstance in aggravation of the crime in imposing a
term under subdivision (b) of Section 1170.
Upon conviction of a violation of Section 11353, 11353.5,
11353.7, 11354, 11361, or 11380 of the Health and Safety Code, or a
finding of truth of an enhancing allegation pursuant to paragraph (3)
of subdivision (a) of Section 11353.1, Section 11353.6, or paragraph
(3) of subdivision (a) of Section 11380.1, the fact that the minor
was 11 years of age or younger shall be considered a circumstance in
aggravation when imposing a term under subdivision (b) of Section
1170.
Upon conviction of a felony violation of Section 11377,
11378, or 11378.5 of the Health and Safety Code, the court shall
consider the quantity of controlled substance involved in determining
whether to impose an aggravated term under subdivision (b) of
Section 1170.
Upon conviction of a felony violation of Section 11377,
11378, 11379, or 11379.6 of the Health and Safety Code, for an
offense involving methamphetamine, the fact that the controlled
substance is the crystalline form of methamphetamine shall be
considered a circumstance in aggravation of the crime in imposing a
term under subdivision (b) of Section 1170.
The fact that a defendant who commits or attempts to
commit a violation of Section 243.4, 245, or 273.5 is or has been a
member of the household of a minor or of the victim of the offense,
or the defendant is a marital or blood relative of the minor or the
victim, or the defendant or the victim is the natural parent,
adoptive parent, stepparent, or foster parent of the minor, and the
offense contemporaneously occurred in the presence of, or was
witnessed by, the minor shall be considered a circumstance in
aggravation of the crime in imposing a term under subdivision (b) of
Section 1170.
Upon a conviction of a violation of Section 451, the fact
that the person committed the offense in retaliation against the
owner or occupant of the property or structure burned, or against one
believed by the person to be the owner or occupant of the property
or structure burned, for any eviction or other legal action taken by
the owner or occupant, or believed owner or occupant, shall be a
circumstance in aggravation of the crime in imposing a term under
subdivision (b) of Section 1170.
(a) The fact that a robbery or an assault with a deadly
weapon or instrument or by means of any force likely to produce great
bodily injury was committed against a person while that person was
in a church, synagogue, or building owned and occupied by a religious
educational institution, or any other place primarily used as a
place of worship where religious services are regularly conducted,
shall be considered a circumstance in aggravation of the crime in
imposing a term under subdivision (b) of Section 1170.
(b) Upon conviction of any person for a violation of Section 451
or 453, the fact that the person intentionally burned, or intended to
burn, a church, synagogue, or building owned and occupied by a
religious educational institution, or any other place primarily used
as a place of worship where religious services are regularly
conducted, shall be considered a circumstance in aggravation of the
crime in imposing a term under subdivision (b) of Section 1170.
The fact that the intended victim of an attempted life
term crime was a peace officer, as described in subdivisions (a) and
(b) of Section 830.1, or Section 830.2, 830.5 or 830.6, while the
peace officer was engaged in the performance of his or her duties,
and the defendant knew or reasonably should have known that the
victim was a peace officer engaged in the performance of his or her
duties, shall be considered a circumstance in aggravation of the
crime in imposing a term under subdivision (b) of Section 1170.
Upon a conviction of a violation of Section 11352, 11360,
11379, or 11379.5 of the Health and Safety Code, the fact that the
person who committed the offense knew, or reasonably should have
known, that any of the following circumstances existed with regard to
the person to whom he or she unlawfully sold, furnished,
administered, or gave away a controlled substance, shall be a
circumstance in aggravation of the crime in imposing a term pursuant
to subdivision (b) of Section 1170:
(a) The person was pregnant at the time of the selling,
furnishing, administering, or giving away of the controlled
substance.
(b) The person had been previously convicted of a violent felony,
as defined in subdivision (c) of Section 667.5.
(c) The person was in psychological treatment for a mental
disorder or for substance abuse at the time of the selling,
furnishing, administering, or giving away of the controlled
substance.
Upon conviction of any serious felony, listed in
subdivision (c) of Section 1192.7, it shall be considered a
circumstance in aggravation of the crime in imposing a term under
subdivision (b) of Section 1170 if, during the course of the serious
felony, the person engaged in the tying, binding, or confining of any
victim.
(a) Upon conviction of any felony assault or battery
offense, it shall be considered a circumstance in aggravation of the
crime in imposing a term under subdivision (b) of Section 1170 if the
offense was committed to prevent or dissuade a person who is or may
become a witness from attending upon or testifying at any trial,
proceeding, or inquiry authorized by law, or if the offense was
committed because the person provided assistance or information to a
law enforcement officer, or to a public prosecutor in a criminal or
juvenile court proceeding.
(b) Upon conviction of any felony it shall be considered a
circumstance in aggravation in imposing a term under subdivision (b)
of Section 1170 if the victim of an offense is particularly
vulnerable, or unable to defend himself or herself, due to age or
significant disability.
Upon conviction of a felony violation of Section 220, 261,
261.5, 264.1, or 266j the fact that the felony was committed within
a safe school zone, as defined in subdivision (c) of Section 626,
against a victim who was a pupil currently attending school, shall be
considered a circumstance in aggravation in imposing a term under
subdivision (b) of Section 1170.
Where there is an applicable triad for an enhancement
related to the possession of, being armed with, use of, or furnishing
or supplying a firearm, set forth in Section 12021.5, 12022,
12022.2, 12022.3, 12022.4, 12022.5, or 12022.55 the fact that a
person knew or had reason to believe that a firearm was stolen shall
constitute a circumstance in aggravation of the enhancement
justifying imposition of the upper term on that enhancement.
(a) In the case of any person convicted of a criminal
offense who could otherwise be sentenced to county jail or state
prison and who alleges that he or she committed the offense as a
result of sexual trauma, traumatic brain injury, post-traumatic
stress disorder, substance abuse, or mental health problems stemming
from service in the United States military, the court shall, prior to
sentencing, make a determination as to whether the defendant was, or
currently is, a member of the United States military and whether the
defendant may be suffering from sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental
health problems as a result of his or her service. The court may
request, through existing resources, an assessment to aid in that
determination.
(b) (1) If the court concludes that a defendant convicted of a
criminal offense is a person described in subdivision (a), and if the
defendant is otherwise eligible for probation, the court shall
consider the circumstances described in subdivision (a) as a factor
in favor of granting probation.
(2) If the court places the defendant on probation, the court may
order the defendant into a local, state, federal, or private
nonprofit treatment program for a period not to exceed that period
which the defendant would have served in state prison or county jail,
provided the defendant agrees to participate in the program and the
court determines that an appropriate treatment program exists.
(c) If a referral is made to the county mental health authority,
the county shall be obligated to provide mental health treatment
services only to the extent that resources are available for that
purpose, as described in paragraph (5) of subdivision (b) of Section
5600.3 of the Welfare and Institutions Code. If mental health
treatment services are ordered by the court, the county mental health
agency shall coordinate appropriate referral of the defendant to the
county veterans service officer, as described in paragraph (5) of
subdivision (b) of Section 5600.3 of the Welfare and Institutions
Code. The county mental health agency shall not be responsible for
providing services outside its traditional scope of services. An
order shall be made referring a defendant to a county mental health
agency only if that agency has agreed to accept responsibility for
the treatment of the defendant.
(d) When determining the "needs of the defendant," for purposes of
Section 1202.7, the court shall consider the fact that the defendant
is a person described in subdivision (a) in assessing whether the
defendant should be placed on probation and ordered into a federal or
community-based treatment service program with a demonstrated
history of specializing in the treatment of mental health problems,
including substance abuse, post-traumatic stress disorder, traumatic
brain injury, military sexual trauma, and other related mental health
problems.
(e) A defendant granted probation under this section and committed
to a residential treatment program shall earn sentence credits for
the actual time the defendant serves in residential treatment.
(f) The court, in making an order under this section to commit a
defendant to an established treatment program, shall give preference
to a treatment program that has a history of successfully treating
veterans who suffer from sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health
problems as a result of that service, including, but not limited to,
programs operated by the United States Department of Defense or the
United States Department of Veterans Affairs.
(g) The court and the assigned treatment program may collaborate
with the Department of Veterans Affairs and the United States
Department of Veterans Affairs to maximize benefits and services
provided to the veteran.
(h) (1) It is in the interests of justice to restore a defendant
who acquired a criminal record due to a mental health disorder
stemming from service in the United States military to the community
of law abiding citizens. The restorative provisions of this
subdivision shall apply to cases in which a trial court or a court
monitoring the defendant's performance of probation pursuant to this
section finds at a public hearing, held after not less than 15 days'
notice to the prosecution, the defense, and any victim of the
offense, that all of the following describe the defendant:
(A) He or she was granted probation and was at the time that
probation was granted a person described in subdivision (a).
(B) He or she is in substantial compliance with the conditions of
that probation.
(C) He or she has successfully participated in court-ordered
treatment and services to address the sexual trauma, traumatic brain
injury, post-traumatic stress disorder, substance abuse, or mental
health problems stemming from military service.
(D) He or she does not represent a danger to the health and safety
of others.
(E) He or she has demonstrated significant benefit from
court-ordered education, treatment, or rehabilitation to clearly show
that granting restorative relief pursuant to this subdivision would
be in the interests of justice.
(2) When determining whether granting restorative relief pursuant
to this subdivision is in the interests of justice, the court may
consider, among other factors, all of the following:
(A) The defendant's completion and degree of participation in
education, treatment, and rehabilitation as ordered by the court.
(B) The defendant's progress in formal education.
(C) The defendant's development of career potential.
(D) The defendant's leadership and personal responsibility
efforts.
(E) The defendant's contribution of service in support of the
community.
(3) If the court finds that a case satisfies each of the
requirements described in paragraph (1), then the court may take any
of the following actions by a written order setting forth the reasons
for so doing:
(A) Deem all conditions of probation to be satisfied, including
fines, fees, assessment, and programs, and terminate probation prior
to the expiration of the term of probation. This subparagraph does
not apply to any court-ordered victim restitution.
(B) Reduce an eligible felony to a misdemeanor pursuant to
subdivision (b) of Section 17.
(C) Grant relief in accordance with Section 1203.4.
(4) Notwithstanding anything to the contrary in Section 1203.4, a
dismissal of the action pursuant to this subdivision has the
following effect:
(A) Except as otherwise provided in this paragraph, a dismissal of
the action pursuant to this subdivision releases the defendant from
all penalties and disabilities resulting from the offense of which
the defendant has been convicted in the dismissed action.
(B) A dismissal pursuant to this subdivision does not apply to any
of the following:
(i) A conviction pursuant to subdivision (c) of Section 42002.1 of
the Vehicle Code.
(ii) A felony conviction pursuant to subdivision (d) of Section
261.5.
(iii) A conviction pursuant to subdivision (c) of Section 286.
(iv) A conviction pursuant to Section 288.
(v) A conviction pursuant to subdivision (c) of Section 288a.
(vi) A conviction pursuant to Section 288.5.
(vii) A conviction pursuant to subdivision (j) of Section 289.
(viii) The requirement to register pursuant to Section 290.
(C) The defendant is not obligated to disclose the arrest on the
dismissed action, the dismissed action, or the conviction that was
set aside when information concerning prior arrests or convictions is
requested to be given under oath, affirmation, or otherwise. The
defendant may indicate that he or she has not been arrested when his
or her only arrest concerns the dismissed action, except when the
defendant is required to disclose the arrest, the conviction that was
set aside, and the dismissed action in response to any direct
question contained in any questionnaire or application for any law
enforcement position.
(D) A dismissal pursuant to this subdivision may, in the
discretion of the court, order the sealing of police records of the
arrest and court records of the dismissed action, thereafter viewable
by the public only in accordance with a court order.
(E) The dismissal of the action pursuant to this subdivision shall
be a bar to any future action based on the conduct charged in the
dismissed action.
(F) In any subsequent prosecution for any other offense, a
conviction that was set aside in the dismissed action may be pleaded
and proved as a prior conviction and shall have the same effect as if
the dismissal pursuant to this subdivision had not been granted.
(G) A conviction that was set aside in the dismissed action may be
considered a conviction for the purpose of administratively revoking
or suspending or otherwise limiting the defendant's driving
privilege on the ground of two or more convictions.
(H) The defendant's DNA sample and profile in the DNA data bank
shall not be removed by a dismissal pursuant to this subdivision.
(I) Dismissal of an accusation, information, or conviction
pursuant to this section does not authorize a defendant to own,
possess, or have in his or her custody or control any firearm or
prevent his or her conviction pursuant to Chapter 2 (commencing with
Section 29800) of Division 9 of Title 4 of Part 6.
If the court concludes that a defendant convicted of a
felony offense is, or was, a member of the United States military who
may be suffering from sexual trauma, traumatic brain injury,
post-traumatic stress disorder, substance abuse, or mental health
problems as a result of his or her military service, the court shall
consider the circumstance as a factor in mitigation when imposing a
term under subdivision (b) of Section 1170. This consideration does
not preclude the court from considering similar trauma, injury,
substance abuse, or mental health problems due to other causes, as
evidence or factors in mitigation.