Amended in Senate March 28, 2016

Senate Bill No. 1202

Introduced by Senator Leno

February 18, 2016

An act to amend Section 1170 begin delete of end delete begin insert of, and to add Section 1170.02 to, end insert the Penal Code, relating to sentencing.

LEGISLATIVE COUNSEL’S DIGEST

SB 1202, as amended, Leno. Sentencing.

Existing law, until January 1, 2017, specifies, when a judgment of imprisonment is to be imposed and the statute specifies 3 possible terms, that the choice of the appropriate term shall rest within the sound discretion of the court. Existing law, on and after January 1, 2017, requires, in that situation, the court to order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. Existing law also requires the court to set forth on the record the facts and reasons for imposing the upper or lower term and the reason for its sentencing choice. Existing law prohibits the court from imposing an upper term based upon the fact of any enhancement upon which sentence is imposed.

This bill would also prohibit the court from imposing an upper term based upon aggravating facts unless those facts are presented to, and found to be true by, the factfinder. The bill would require the court to specify on the record the specific facts in aggravation, if any, the court relied upon to impose an upper term. begin insert The bill would also prohibit a fact pled in the indictment, information, or accusatory pleading in aggravation of sentence from being used as an aggravating factor in sentencing unless that fact has been proven to the trier of fact or admitted by the defendant. The bill would also require the bifurcation of the trial of all facts pled in aggravation of sentence, as specified. end insert By increasing the duties of local prosecutors with regards to presenting and proving aggravating facts, this bill would impose a state-mandated local program.

The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.

This bill would provide that no reimbursement is required by this act for a specified reason.

Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: yes.

The people of the State of California do enact as follows:

SECTION 1.  

Section 1170 of the Penal Code, as amended by
Section 2 of Chapter 378 of the Statutes of 2015, is amended to
read:

1170.  

(a) (1) The Legislature finds and declares that the
purpose of imprisonment for crime is punishment. This purpose
is best served by terms proportionate to the seriousness of the
offense with provision for uniformity in the sentences of offenders
committing the same offense under similar circumstances. The
Legislature further finds and declares that, to ensure proportionality
in sentencing, upper terms should be reserved for individual cases
in which aggravating facts exist and have been proven to be true.
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
shall not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any provision
of law. Additionally, the court shall not impose an upper term
based on aggravating facts unless the facts were presented to, and
found to be true by, the factfinder. 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, including the specific facts in
aggravation, if any, the court relied upon to impose an upper term.
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 the possibility of 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 shall 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.

begin insert

begin insert SEC. 2. end insert   

end insert

begin insert Section 1170.02 is added to the end insert begin insert Penal Code end insert begin insert , to read: end insert

begin insert

begin insert 1170.02. end insert   

(a) A fact pled in the indictment, information, or
accusatory pleading in aggravation of sentence cannot be used as
an aggravating factor in sentencing unless that fact has been
proven to the trier of fact or admitted by the defendant, except
that, in the case of jury trial, prior convictions that have been pled
as provided may be proven to the court to the same extent as they
were permitted to be proven to the court prior to January 1, 2017.

(b) Whether to the jury or to the court, where permitted for prior
convictions or if a jury is waived, the trial of all facts pled in
aggravation of sentence shall be bifurcated. During the first phase,
the jury shall not be informed of a fact alleged in aggravation of
the sentence unless that fact is otherwise admissible and relevant
to the merits of the criminal charge or enhancement and not
excluded pursuant to Section 352 of the Evidence Code. The jury
shall not be informed that a fact is alleged in aggravation of the
sentence until the beginning of the second phase of the trial.

end insert

begin delete SEC. 2. end delete

begin insert SEC. 3. end insert   

No reimbursement is required by this act pursuant to
Section 6 of Article XIII B of the California Constitution because
the only costs that may be incurred by a local agency or school
district will be incurred because this act creates a new crime or
infraction, eliminates a crime or infraction, or changes the penalty
for a crime or infraction, within the meaning of Section 17556 of
the Government Code, or changes the definition of a crime within
the meaning of Section 6 of Article XIII B of the California
Constitution.