CURRENT BILL STATUS MEASURE : S.B. No. 40

AUTHOR(S) : Romero. TOPIC : Sentencing.

HOUSE LOCATION : ASM +LAST AMENDED DATE : 03/08/2007

TYPE OF BILL : Active Urgency Non-Appropriations 2/3 Vote Required Non-State-Mandated Local Program Fiscal Non-Tax Levy

LAST HIST. ACT. DATE: 03/08/2007

LAST HIST. ACTION : From committee with author's amendments. Read second time. Amended. Re-referred to committee.

COMM. LOCATION : ASM PUBLIC SAFETY

HEARING DATE : 03/13/2007

TITLE : An act to amend, repeal, and add Sections 1170 and 1170.3 of the Penal Code, relating to sentencing and declaring the urgency thereof, to take effect immediately.


BILL NUMBER: SB 40 AMENDED BILL TEXT AMENDED IN ASSEMBLY MARCH 8, 2007 AMENDED IN SENATE FEBRUARY 1, 2007 AMENDED IN SENATE JANUARY 25, 2007 INTRODUCED BY Senator Romero DECEMBER 20, 2006 An act to amend, repeal, and add Section 1170 Sections 1170 and 1170.3 of the Penal Code, relating to sentencing and declaring the urgency thereof, to take effect immediately. LEGISLATIVE COUNSEL'S DIGEST SB 40, as amended, Romero. Sentencing. Existing law establishes various felonies punishable by a triad of terms of incarceration in the state prison, comprised of low, middle, and upper terms. Existing law requires the court to impose the middle term, unless there are circumstances in mitigation or aggravation of the crime. This bill would instead provide that the choice of the appropriate term would rest within the sound discretion of the court. The bill would make other nonsubstantive changes. This bill would provide that these changes would be repealed on January 1, 2009. The bill would make other conforming changes. This bill would declare that it is to take effect immediately as an urgency statute. Vote: 2/3. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. It is the intent of the Legislature in enacting this provision to respond to the decision of the United States Supreme Court in Cunningham v. California, No. 05-6551, 2007 U.S. Lexis 1324. It is the further intent of the Legislature to maintain stability in California's criminal justice system while the criminal justice and sentencing structures in California sentencing are being reviewed. SEC. 2. Section 1170 of the Penal Code is amended to read: 1170. (a) (1) The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion. (2) Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program. (3) In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life. In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the Secretary of the Department of Corrections and Rehabilitation. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendant's last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the Secretary of the Department of Corrections and Rehabilitation. (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. (d) When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Secretary of the Department of Corrections and Rehabilitation, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of thesecretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence 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. (e) (1) Notwithstanding any other law and consistent with paragraph (1) of subdivision (a) of Section 1170 , if the Secretary of the Department of Corrections and Rehabilitation 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 both of the following: (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. 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) The prisoner or his or her family member or designee may request consideration for recall and resentencing by contacting the chief medical officer at the prison or the Secretary of the Department of Corrections and Rehabilitation. Upon receipt of the request, 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 may 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. (5) Any recommendation for recall submitted to the court by the Secretary of the Department of Corrections and Rehabilitation or the Board of Parole Hearings shall include one or more medical evaluations, a postrelease plan, and findings pursuant to paragraph (2). (6) If possible, the matter shall be heard before the same judge of the court who sentenced the prisoner. (f) Any sentence imposed under this article shall be subject to the provisions of Sections 3000 and 3057 and any other applicable provisions of law. (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) This section shall remain in effect only until January 1, 2009,and as of that date is repealed, unless a later enacted statute, that is enacted before that date, deletes or extends that date. SEC. 3. Section 1170 is added to the Penal Code, to read: 1170. (a) (1) The Legislature finds and declares that the purpose of imprisonment for crime is punishment. This purpose is best served by terms proportionate to the seriousness of the offense with provision for uniformity in the sentences of offenders committing the same offense under similar circumstances. The Legislature further finds and declares that the elimination of disparity and the provision of uniformity of sentences can best be achieved by determinate sentences fixed by statute in proportion to the seriousness of the offense as determined by the Legislature to be imposed by the court with specified discretion. (2) Notwithstanding paragraph (1), the Legislature further finds and declares that programs should be available for inmates, including, but not limited to, educational programs, that are designed to prepare nonviolent felony offenders for successful reentry into the community. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent felony offenders. In implementing this section, the Department of Corrections and Rehabilitation is encouraged to give priority enrollment in programs to promote successful return to the community to an inmate with a short remaining term of commitment and a release date that would allow him or her adequate time to complete the program. (3) In any case in which the punishment prescribed by statute for a person convicted of a public offense is a term of imprisonment in the state prison of any specification of three time periods, the court shall sentence the defendant to one of the terms of imprisonment specified unless the convicted person is given any other disposition provided by law, including a fine, jail, probation, or the suspension of imposition or execution of sentence or is sentenced pursuant to subdivision (b) of Section 1168 because he or she had committed his or her crime prior to July 1, 1977. In sentencing the convicted person, the court shall apply the sentencing rules of the Judicial Council. The court, unless it determines that there are circumstances in mitigation of the punishment prescribed, shall also impose any other term that it is required by law to impose as an additional term. Nothing in this article shall affect any provision of law that imposes the death penalty, that authorizes or restricts the granting of probation or suspending the execution or imposition of sentence, or expressly provides for imprisonment in the state prison for life. In any case in which the amount of preimprisonment credit under Section 2900.5 or any other provision of law is equal to or exceeds any sentence imposed pursuant to this chapter, the entire sentence shall be deemed to have been served and the defendant shall not be actually delivered to the custody of the Secretary of Corrections and Rehabilitation. The court shall advise the defendant that he or she shall serve a period of parole and order the defendant to report to the parole office closest to the defendant's last legal residence, unless the in-custody credits equal the total sentence, including both confinement time and the period of parole. The sentence shall be deemed a separate prior prison term under Section 667.5, and a copy of the judgment and other necessary documentation shall be forwarded to the secretary. (b) When a judgment of imprisonment is to be imposed and the statute specifies three possible terms, the court shall order imposition of the middle term, unless there are circumstances in aggravation or mitigation of the crime. At least four days prior to the time set for imposition of judgment, either party or the victim, or the family of the victim if the victim is deceased, may submit a statement in aggravation or mitigation to dispute facts in the record or the probation 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. (d) When a defendant subject to this section or subdivision (b) of Section 1168 has been sentenced to be imprisoned in the state prison and has been committed to the custody of the Secretary of Corrections and Rehabilitation, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the secretary or the Board of Parole Hearings, recall the sentence and commitment previously ordered and resentence the defendant in the same manner as if he or she had not previously been sentenced, provided the new sentence, if any, is no greater than the initial sentence. The resentence 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. (e) (1) Notwithstanding any other law and consistent with paragraph (1) of subdivision (a) of Section 1170 , if the Secretary of Corrections and Rehabilitation 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 both of the following: (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. The board 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) The prisoner or his or her family member or designee may request consideration for recall and resentencing by contacting the chief medical officer at the prison or the secretary. Upon receipt of the request, 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 may make a recommendation to the board 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. (5) Any recommendation for recall submitted to the court by the secretary or the board shall include one or more medical evaluations, a postrelease plan, and findings pursuant to paragraph (2). (6) If possible, the matter shall be heard before the same judge of the court who sentenced the prisoner. (f) Any sentence imposed under this article shall be subject to the provisions of Sections 3000 and 3057 and any other applicable provisions of law. (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) This section shall become operative on January 1, 2009. SEC. 4. Section 1170.3 of the Penal Code is amended to read: 1170.3. 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 concurrent or consecutive sentences. (4) Determine whether or not to impose an enhancement where that determination is permitted by law. (b) The adoption of rules standardizing the minimum content and the sequential presentation of material in probation officer reports submitted to the court. (c) This section shall remain in effect only until January 1, 2009, and as of that date is repealed, unless a later enacted statute, that is enacted before January 1, 2009, deletes or extends that date. SEC. 5. Section 1170.3 is added to the Penal Code , to read: 1170.3. 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 concurrent or consecutive sentences. (4) Determine whether or not to impose an enhancement where that determination is permitted by law. (b) The adoption of rules standardizing the minimum content and the sequential presentation of material in probation officer reports submitted to the court. (c) This section shall become operative on January 1, 2009. SEC. 4. SEC. 6. This act is an urgency statute necessary for the immediate preservation of the public peace, health, or safety within the meaning of Article IV of the Constitution and shall go into immediate effect. The facts constituting the necessity are: In order to respond to the United States Supreme Court decision in Cunningham v. California and provide for stability in California's criminal justice system, it is necessary that this act take effect immediately.


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