BILL ANALYSIS                                                                                                                                                                                                    Ó



          SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Loni Hancock, Chair
                                2015 - 2016  Regular 

          Bill No:    AB 1156       Hearing Date:    July 7, 2015     
          
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          |Author:    |Brown                                                |
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          |Version:   |February 27, 2015                                    |
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          |Urgency:   |No                     |Fiscal:    |Yes              |
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          |Consultant:|JM                                                   |
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                       Subject:  Imprisonment in County Jail 



          HISTORY

          Source:   California Public Defenders; Conference of California  
                    Bar Associations; Judicial Council of California

          Prior Legislation:                                AB 109  
          (Committee on Budget) - Ch. 15, Stats. 2011
                         AB 117 (Committee on Budget) - Ch. 39, Stats.  
          2011           
                         SB 42 (Nejedly) - Ch. 1139, Stats. 1976

          Support:  American Civil Liberties Union; California Attorneys  
          for Criminal Justice;
                    Legal Services for Prisoners with Children; National  
                    Association of Social Workers; Sheriff of the City and  
                    County of San Francisco

          Opposition:None known

          Assembly Floor Vote:                 54 - 24


          PURPOSE

          The purpose of this bill is to apply a wide range of sentencing  








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          statutes and rules applicable to prison sentences to felony  
          sentences imposed under criminal justice realignment.

          Existing law:

          Requires the court to choose the lower, middle or upper term  
          when imposing a prison sentence and to state reasons for the  
          sentencing choice.  The court shall impose the middle term  
          unless it finds factors in aggravation or mitigation justifying  
          imposition of the upper term or lower term, respectively.   
          (Penal Code § 1170 (b).)

          Requires the sentencing court to inform a defendant sentenced to  
          prison that he or she may be required to serve a period of  
          parole. (Id.)

          Provides that when a defendant has been committed to state  
          prison, the court may, within 120 days of commitment on its own  
          motion, or at any time upon the recommendation of the Department  
          of Corrections and Rehabilitation (CDCR) or the Board of Parole  
          Hearings (BPH), recall the sentence and resentence the  
          defendant.  Any new sentence may be no greater than the initial  
          sentence.  The court shall apply the sentencing rules in the  
          Rules of Court so as to eliminate disparity and promote  
          uniformity in sentencing.  (Pen. Code, § 1170, subd. (d)(1).)

          States that in any case in which the amount of pre-sentence  
          credit exceeds the sentence imposed, the sentence shall be  
          deemed to have been served.  The court shall advise the  
          defendant that he or she will serve a parole term, unless the  
          in-custody credits exceed both confinement time and parole.   
          (Pen. Code, § subd. (a)(3).)

          Provides that if CDCR or BPH determine both that the prisoner  
          has six months or fewer to live and would not pose a threat to  
          public safety if released, CDCR director BPH may recommend to  
          the court that the prisoner's sentence be recalled.  The court  
          may order the prisoner's release if it makes those same  
          findings.  (Pen. Code, § 1170, subd. (e)(1)-(2).)

          Requires the court to hold a hearing to consider whether a  
          prisoner's sentence should be recalled within 10 days of receipt  
          of a positive recommendation by the CDCR director or BPH.  (Pen.  
          Code, § 1170, subd. (e)(3).)









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          States that the Judicial Council shall promote uniformity of  
          sentencing by adopting rules that set out criteria for the  
          consideration of trial judge in making decisions to:

           Grant or deny probation;
           Impose the lower or upper term;
           Impose concurrent or consecutive sentences;
           Determine whether or not to impose an enhancement when an  
            enhancement is permitted by law; or
           Deny a period of mandatory supervision in the interests of  
            justice, or determine the appropriate period and conditions of  
            mandatory supervision.  (Pen. Code, § 1170.3, subd.  
            (a)(1)-(5).)

          Provides that any person convicted of a felony who has been  
          released from any state penal institution, whether discharged on  
          completion of the total term or released on parole, who has not  
          been incarcerated in a state penal institution since his or her  
          release, and who has resided in California for three years may  
          file a petition for a certificate of rehabilitation and pardon.   
          (Pen. Code, § 4852.01, subd. (a).)

          This bill:

          Clarifies that in any case where the pre-imprisonment credit of  
          a person sentenced to the county jail under the 2011 Realignment  
          Act exceeds any sentence imposed, the entire sentence shall be  
          deemed to have been served, except for the remaining portion of  
          mandatory supervision, and the defendant shall not be delivered  
          to the custody of the county correctional administrator.

          Provides that when a defendant is sentenced to the county jail  
          under the 2011 Realignment Act, the court may, within 120 days  
          of the date of commitment on its own motion, or upon the  
          recommendation of the county correctional administrator, recall  
          the sentence 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 original sentence.

          Requires the Judicial Council to adopt rules providing criteria  
          for the imposition of the lower, middle or upper term, and  
          determine the county or jurisdictional territory when the court  









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          is imposing a concurrent or consecutive sentence under the 2011  
          Realignment Act upon a person previously sentenced to the county  
          jail under the 2011 Realignment Act in another county or  
          jurisdictional territory.

          Specifically requires the court to choose the lower, middle or  
          upper term when imposing an executed felony jail term and to  
          state reasons for the sentencing choice.  The court shall impose  
          the middle term unless it finds factors in aggravation or  
          mitigation justifying imposition of the upper term or lower  
          term, respectively.  

          Requires the sentencing court to inform a defendant sentenced to  
          prison may be required to serve a period of postrelease  
          community supervision. 

          Clarifies that a person released from the state prison on post  
          release community supervision shall be supervised by the  
          probation department of the county to which the person is  
          released, and requires that the inmate be informed of his or her  
          duty to report to the county probation department upon release.

          Extends the right to petition for a certificate of  
          rehabilitation and pardon to persons convicted of a felony and  
          sentenced to a county jail under the 2011 Realignment Act and  
          requires that the inmate be informed in writing by the facility  
          official of this right.

          Provides that a person shall not be subject to prosecution for a  
          non-felony offense arising out of a violation in the California  
          Vehicle Code, with the exception of Driving under the Influence  
          (DUI), that is pending against him or her at the time of his or  
          commitment to a county jail under the 2011 Realignment Act.

          Extends provisions related to the compassionate release of a  
          state prison inmate, who is terminally ill, to an inmate  
          sentenced to a county jail under the 2011 Realignment Act. 

                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the past eight years, this Committee has scrutinized  
          legislation referred to its jurisdiction for any potential  
          impact on prison overcrowding.  Mindful of the United States  
          Supreme Court ruling and federal court orders relating to the  









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          state's ability to provide a constitutional level of health care  
          to its inmate population and the related issue of prison  
          overcrowding, this Committee has applied its "ROCA" policy as a  
          content-neutral, provisional measure necessary to ensure that  
          the Legislature does not erode progress in reducing prison  
          overcrowding.   

          On February 10, 2014, the federal court ordered California to  
          reduce its in-state adult institution population to 137.5% of  
          design capacity by February 28, 2016, as follows:   

                 143% of design bed capacity by June 30, 2014;
                 141.5% of design bed capacity by February 28, 2015; and,
                 137.5% of design bed capacity by February 28, 2016. 

          In February of this year the administration reported that as "of  
          February 11, 2015, 112,993 inmates were housed in the State's 34  
          adult institutions, which amounts to 136.6% of design bed  
          capacity, and 8,828 inmates were housed in out-of-state  
          facilities.  This current population is now below the  
          court-ordered reduction to 137.5% of design bed capacity."(  
          Defendants' February 2015 Status Report In Response To February  
          10, 2014 Order, 2:90-cv-00520 KJM DAD PC, 3-Judge Court, Coleman  
          v. Brown, Plata v. Brown (fn. omitted).

          While significant gains have been made in reducing the prison  
          population, the state now must stabilize these advances and  
          demonstrate to the federal court that California has in place  
          the "durable solution" to prison overcrowding "consistently  
          demanded" by the court.  (Opinion Re: Order Granting in Part and  
          Denying in Part Defendants' Request For Extension of December  
          31, 2013 Deadline, NO. 2:90-cv-0520 LKK DAD (PC), 3-Judge Court,  
          Coleman v. Brown, Plata v. Brown (2-10-14).  The Committee's  
          consideration of bills that may impact the prison population  
          therefore will be informed by the following questions:

              Whether a proposal erodes a measure which has contributed  
               to reducing the prison population;
              Whether a proposal addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy;
              Whether a proposal addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 









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              Whether a proposal corrects a constitutional problem or  
               legislative drafting error; and
              Whether a proposal proposes penalties which are  
               proportionate, and cannot be achieved through any other  
               reasonably appropriate remedy.


          COMMENTS

          1.Need for This Bill
          
          According to the author:

               AB 1156 eliminates discrepancies and inconsistencies  
               in treatment between felons sent to prison and felons  
               sent to county jail under Realignment that were not  
               addressed in the original or subsequent legislation.   
               These inconsistencies are unnecessary, unfair, and  
               costly.  Their elimination will enhance the fairness  
               of the system and save the taxpayers money. " 

          2.Criminal Justice Realignment 

          Criminal justice realignment was a sea change in California  
          criminal law, arguably comparable in importance to enactment of  
          the Determinate Sentencing Law (DSL) in 1976.  For most crimes,  
          the DSL eliminated indeterminate sentences under which the time  
          a defendant served in prison was determined by the Adult [  
          parole] Authority within a statutory range.  Under the DSL, a  
          court chooses from a "triad" of possible set or determined terms  
          - lower, middle or upper.  The middle terms is imposed unless  
          there are factors in aggravation or mitigation justifying an  
          upper
          or lower terms.  Over time, additional penalties - enhancements  
          - and new sentencing schemes, including the Three Strikes law,  
          were steadily enacted.  The new penalty provisions were often  
          enacted in response to particularly notorious crimes for which  
          it was argued the DSL provided insufficient punishment.    

          The DSL requires the sentencing court to make a number of  
          choices in imposing sentence.   These choices or decisions  
          include granting or denying probation and whether to impose the  
          lower, middle or upper term if probation is denied or  
          prohibited.   Where the defendant is convicted of more than one  









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          felony offense, or if enhancements (e.g., use of a weapon or  
          prior convictions) apply, sentencing becomes more complicated.   
          The court chooses one offense to be the principal term and  
          builds the sentence around it, making decision about whether  
          sentences should be served consecutively (back-to-back) or  
          concurrently (at the same time).  Other sentencing decisions may  
          apply, such as whether to strike punishment in any part.  All of  
          the sentencing rules a court must follow and choices a court  
          must make have been considered in myriad appellate cases since  
          enactment of the DSL.  The published opinions of the courts  
          become another body of law, binding on the trial courts.  Where  
          the appellate courts are in conflict, the California Supreme  
          resolves the conflict and settles the issue.  

          Voters and the Legislature steadily approved prison construction  
          from 1982 through the 1990s, but construction programs largely  
          slowed or stopped with the opening of a new prison in Delano in  
          2005.<1>  Recently, new prison medical facilities have been  
          built through the supervision of a receiver<2> appointed by the  
          federal courts in response to a finding that California prisons  
          were so crowded as to deny adequate medical care, creating an  
          unconstitutional system of cruel and unusual punishment.<3>   
          California spent heavily on medical facilities and care, but the  
          federal court continued to demand that the prison population be  
          reduced.

          The prison population was only substantially reduced through  
          implementation of criminal justice realignment after 2011.   
          Realignment essentially transferred responsibility for low-level  
          felony inmates from state prison to counties and county jail.   
          Certain offenders are excluded from county jail sentencing -  
          those with a prior or current serious or violent felony  
          conviction, or any person required to register as a sex  
          offender.  Excluded defendants continue to serve imposed and  
          ---------------------------
          <1> http://www.csmonitor.com/2005/0620/p03s02-usju.html

          <2>  
          http://www.sfgate.com/politics/article/California-spending-billio 
          ns-to-build-new-prisons-2335352.php

          <3>  
          http://www.lao.ca.gov/reports/2014/budget/three-judge-panel/three 
          -judge-panel-022814.aspx









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          executed felony terms in prison. 
            
          This bill applies the sentencing statutes and court rules  
          enacted and promulgated for the DSL to sentences imposed  
          pursuant to criminal justice realignment.  This bill should  
          provide clarity and guidance for trial courts in making  
          sentencing decisions under realignment.  


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