Compassionate Release Law
California Code of Regulations, Title 15, section 3076.
Recall of Commitment Recommendation Circumstances. The director may recommend at any time to the sentencing court the recall of an inmate’s commitment pursuant to Penal Code section 1170(d) for one or more of the following reasons: (a) The inmate is terminally ill and is not condemned or sentenced to life without possibility of parole. (b) It is evident from the inmate’s exceptional behavior that is so extraordinary beyond simply complying with all regulations and procedures during incarceration that they have changed as a person and would be a positive asset to the community. (c) Information which was not made available to the court in pronouncing the inmate’s sentence is brought to the attention of the director, who deems the information would have influenced the sentence imposed by the court. (d) The director deems that circumstances have changed to the extent that the inmate’s continued incarceration is not in the interest of justice. NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d) and 5054, Penal Code. [For related information see DOM Section 62020.] HISTORY: 1. New section filed 5-20-92 as an emergency; operative 5-20-92 (Register 92, No. 21). A Certificate of Compliance must be transmitted to OAL 9-17-92 or emergency language will be repealed by operation of law on the following day. 2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43). 3. New section refiled 10-23-92 as an emergency; operative 10-22-92 pursuant to Government Code section 11346.1(h) (Register 92, No. 43). A Certificate of Compliance must be transmitted to OAL 2-23-93 or emergency language will be repealed by operation of law on the following day. 4. Certificate of Compliance as to 10-23-92 order including amendment of first paragraph and subsection (b) transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6). 3076.1. Recall of Commitment Consideration Criteria. For inmates meeting one or more of the eligibility requirements of section 3076, the classification and parole representative shall consider the following criteria as may be applicable before recommending recall of commitment consideration for an inmate: (a) The inmate is or is not terminally ill or, if diagnosed as having an illness which results in death, the inmate has more than an estimated six months to live. (b) The inmate’s commitment offense is for one or more of the following felonies: murder, attempted murder, voluntary manslaughter, mayhem, rape with force or violence, sodomy with force or violence, oral copulation with force or violence, sodomy with force or violence, oral copulation with force or violence, lewd acts on a child under 14 years of age, arson, and/or other felonies punishable by imprisonment for life. (c) The inmate is or is not designated as a high notoriety case by the classification staff representative or their placement has or has not been ordered by the departmental review board because of an unusual threat to the safety of persons or public interest in the inmate’s case. (d) The court was aware of the inmate’s imminent terminal status at the time of sentencing. (e) The inmate’s prior criminal history reflects a pattern of convictions for violent acts against persons pursuant to Penal Code section 667.5(c). (f) The inmate has no prior criminal convictions preceding the commitment offense. (g) There exists a documented victim or next of kin of the commitment offense in the community who would suffer fear from the release of the inmate back into the community. (h) The inmate’s documented institutional behavior reflects an ongoing, serious pattern of force, violence, assault, arson or predatory sexual behavior. (i) The inmate is terminally ill and there are or are not verifiable community resources appropriate, sufficient, and immediately available to provide support and sustenance and to meet the inmate’s medical and/or psychological needs upon release. NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d), 3043 and 5054, Penal Code. [For related information see DOM Subsections 62020.4 and 62020.6.] HISTORY: 1. New section filed 5-20-92 as an emergency; operative 5-20-92 (Register 92, No. 21). A Certificate of Compliance must be transmitted to OAL 9-17-92 or emergency language will be repealed by operation of law on the following day. 2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43). 3. New section refiled 10-23-92 as an emergency; operative 10-22-92 pursuant to Government Code section 11346.1(h) (Register 92, No. 43). A Certificate of Compliance must be transmitted to OAL 2-23-93 or emergency language will be repealed by operation of law on the following day. 4. Certificate of Compliance as to 10-23-92 order including amendment of first paragraph and subsection (c) transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6). 3076.2. Recall of Commitment Processing. (a) Recall of Commitment Processing for Terminally Ill Inmates. (1) Requests for a determination that an inmate is terminally ill and that they be considered for recall of commitment which are initiated by the facility at any time or by the sentencing court more than 120 days after the date of commitment shall be referred to the inmate’s caseworker, who shall inform the inmate’s treating physician or the facility’s chief medical officer of the request. (2) For the purpose of this regulation, the facility’s chief medical officer must also concur with the treating physician’s prognosis of the inmate. (3) Within three working days of the caseworker advising the chief medical officer or the inmate’s treating physician of the request or of a medical staff member’s discovery of a medical condition appropriate for eligibility review, the chief medical officer shall determine if the inmate is terminally ill. This determination shall be documented on a CDC Form 128-C, Chrono-Medical-Psych-Dental, which shall include a description of the inmate’s illness, physical condition, estimated life expectancy and desire to participate in a recall consideration, and which shall be submitted to the classification and parole representative. 45 (4) The classification and parole representative shall review the report and the inmate’s central file and consider the criteria listed in section 3076.1 before recommending recall of commitment consideration for the inmate. (5) If the classification and parole representative recommends against further recall consideration, the reasons shall be documented on a CDC Form 128-B, Chron—General (Rev. 4/74), which shall be countersigned by the warden or chief deputy warden within three working days of receipt of the CDC Form 128-C. The original CDC Form 128-B shall be filed in the inmate’s central file and a copy, excluding any confidential material as defined in section 3321, sent to the inmate. (6) If the classification and parole representative determines that the case warrants recall consideration, the CDC Form 128-C shall be submitted to the inmate’s caseworker, who shall investigate and evaluate the inmate’s suitability for recommendation of recall and document their evaluation in a report, with the following attachments: (A) The CDC Form 128-C. (B) The inmate’s cumulative case summary. (C) A list of any victim notification or other special notification requirements. (7) The institution’s evaluation and recommendation for a Penal Code section 1170(d) recall of a terminally ill inmate, if in favor of recall or equivocal, or in all cases if the evaluation was originally requested by the sentencing judge or if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, shall be signed by the warden or chief deputy warden and forwarded within twelve working days from the date of the CDC Form 128-C to department headquarters, and if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, to the Board of Prison Terms. (b) Recall of Commitment Processing for Non-Terminally Ill Inmates. (1) Requests for consideration for recall of commitment which are initiated by the facility at any time or by the sentencing court more than 120 days after the date of commitment shall be referred to the classification and parole representative via the inmate’s caseworker. (2) Upon receipt of the request, the classification and parole representative shall consider the criteria listed in section 3076.1 and the inmate’s central file before recommending recall of commitment consideration for the inmate. (3) If the classification and parole representative recommends against further recall consideration, the reasons shall be documented on a CDC Form 128-B, Chrono—General (Rev. 4/74), which shall be countersigned by the warden or chief deputy warden. The original CDC Form 128-B shall be filed in the inmate’s central file and a copy, excluding any confidential material as defined in section 3321, sent to the inmate. (4) If the classification and parole representative determines that the inmate’s case warrants recall consideration, the classification and parole representative’s findings shall be submitted to the inmate’s caseworker, who shall investigate and evaluate the inmate’s suitability for recommendation of recall and document their evaluation in a report, with the following attachments: (A) The inmate’s cumulative case summary. (B) A list of any victim notification or other special notification requirements. (5) The institution’s evaluation and recommendation for a Penal Code section 1170(d) recall of the inmate, if in favor of recall or equivocal, or in all cases if the evaluation was originally requested by the sentencing judge or if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, shall be signed by the warden or chief deputy warden and forwarded to department headquarters, and if the inmate’s term of imprisonment is under the jurisdiction of the Board of Prison Terms pursuant to Penal Code section 1170.2, to the Board of Prison Terms. NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d), 3043 and 5054, Penal Code. [For related information see DOM Subsections 62020.8, 62020.9, 62020.10, 62020.11, and 62020.13.] HISTORY: 1. New section filed 5-20-92 as an emergency; operative 5-20-92 (Register 92, No. 21). A Certificate of Compliance must be transmitted to OAL 9-17-92 or emergency language will be repealed by operation of law on the following day. 2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43). 3. New section refiled 10-23-92 as an emergency; operative 10-22-92 pursuant to Government Code section 11346.1(h) (Register 92, No. 43). A Certificate of Compliance must be transmitted to OAL 2-23-92 or emergency language will be repealed by operation of law on the following day. 4. Certificate of Compliance as to 10-23-92 order including amendment of subsections (a)(1), (a)(3)–(5) and (b)(2) transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6). 3076.3. Victim Notification for Recall of Commitment Recommendations. When informed that an inmate’s commitment has been recommended for recall to the court, the inmate’s classification and parole representative shall notify any victim of a crime committed by the inmate, or the victim’s next of kin if the victim has died, provided that the victim or the victim’s next of kin has requested notice of any hearing to review or consider the parole suitability or the setting of a parole date for the inmate, and the requesting party has kept the department or the Board of Prison Terms apprised of their current mailing address. The notification shall include the name and address of the court that will consider recall. NOTE: Authority cited: Section 5058, Penal Code. Reference: Sections 1170(d), 3043 through 3043.3 and 5054, Penal Code. [For related information see DOM Subsection 72060.7.] HISTORY: 1. New section filed 5-20-92 as an emergency; operative 5-20-92 (Register 92, No. 21). A Certificate of Compliance must be transmitted to OAL 9-17-92 or emergency language will be repealed by operation of law on the following day. 2. Certificate of Compliance as to 5-20-92 order transmitted to OAL 9-9-92; disapproved by OAL and order of repeal of 5-20-92 order filed on 10-22-92 (Register 92, No. 43). 3. New section refiled 10-23-92 as an emergency; operative 10-22-92 pursuant to Government Code section 11346.1(h) (Register 92, No. 43). A Certificate of Compliance must be transmitted to OAL 2-23-93 or emergency language will be repealed by operation of law on the following day. 4. Certificate of Compliance as to 10-23-92 order transmitted to OAL 12-18-92 and filed 2-3-93 (Register 93, No. 6).
CURRENT BILL STATUS MEASURE : A.B. No. 1946 AUTHOR(S) : Steinberg. TOPIC : Sentencing. HOUSE LOCATION : SEN +LAST AMENDED DATE : 05/03/2004 TYPE OF BILL : Inactive Non-Urgency Non-Appropriations Majority Vote Required Non-State-Mandated Local Program Fiscal Non-Tax Levy LAST HIST. ACT. DATE: 07/12/2004 LAST HIST. ACTION : To inactive file on motion of Senator Burton. FILE : SEN INACTIVE FILE - ASSEMBLY BILLS FILE DATE : 08/04/2004 ITEM : A- 50 TITLE : An act to amend Section 1170 of the Penal Code, relating to sentencing. BILL NUMBER: AB 1946 AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 3, 2004 AMENDED IN ASSEMBLY APRIL 16, 2004 INTRODUCED BY Assembly Member Steinberg FEBRUARY 11, 2004 An act to amend Section 1170 of the Penal Code, relating to sentencing. LEGISLATIVE COUNSEL'S DIGEST AB 1946, as amended, Steinberg. Sentencing. Under existing law, a state prisoner who is diagnosed with a disease that would produce death within 6 months and whose release is deemed not to threaten the public safety may have his or her sentence recalled and be resentenced. Existing law additionally sets forth grounds under which the court has discretion to find that a prisoner is eligible for resentence or recall. This bill would make prisoners who are diagnosed with a disease that would produce death within CURRENT BILL STATUS MEASURE : A.B. No. 1946 AUTHOR(S) : Steinberg. TOPIC : Sentencing. HOUSE LOCATION : SEN +LAST AMENDED DATE : 05/03/2004 TYPE OF BILL : Inactive Non-Urgency Non-Appropriations Majority Vote Required Non-State-Mandated Local Program Fiscal Non-Tax Levy LAST HIST. ACT. DATE: 07/12/2004 LAST HIST. ACTION : To inactive file on motion of Senator Burton. FILE : SEN INACTIVE FILE - ASSEMBLY BILLS FILE DATE : 08/04/2004 ITEM : A- 50 TITLE : An act to amend Section 1170 of the Penal Code, relating to sentencing. CURRENT BILL STATUS MEASURE : A.B. No. 1946 AUTHOR(S) : Steinberg. TOPIC : Sentencing. HOUSE LOCATION : ASM +LAST AMENDED DATE : 05/03/2004 TYPE OF BILL : Active Non-Urgency Non-Appropriations Majority Vote Required Non-State-Mandated Local Program Fiscal Non-Tax Levy LAST HIST. ACT. DATE: 05/03/2004 LAST HIST. ACTION : Read third time, amended, and returned to third reading. FILE : ASM THIRD READING FILE DATE : 05/24/2004 ITEM : 123 TITLE : An act to amend Section 1170 of the Penal Code, relating to sentencing. BILL NUMBER: AB 1946 AMENDED BILL TEXT AMENDED IN ASSEMBLY MAY 3, 2004 AMENDED IN ASSEMBLY APRIL 16, 2004 INTRODUCED BY Assembly Member Steinberg FEBRUARY 11, 2004 An act to amend Section 1170 of the Penal Code, relating to sentencing. LEGISLATIVE COUNSEL'S DIGEST AB 1946, as amended, Steinberg. Sentencing. Under existing law, a state prisoner who is diagnosed with a disease that would produce death within 6 months and whose release is deemed not to threaten the public safety may have his or her sentence recalled and be resentenced. Existing law additionally sets forth grounds under which the court has discretion to find that a prisoner is eligible for resentence or recall. This bill would make prisoners who are diagnosed with a disease that would produce death within months, and whose release is deemed not to threaten public safety, eligible to have their sentences recalled and to be resentenced and would expand the grounds under which the court exercises discretion to find eligibility for resentencing or recall. This bill would also oblige a physician employed by the Department of Corrections who determines that a prisoner has months or less to live to inform the appropriate chief medical officer of that fact, and, if he or she concurs, would oblige the chief medical officer to inform the warden of that fact. This bill would also require the warden or the warden's representative to inform a prisoner given that prognosis of the recall and resentencing procedures, and to arrange for the prisoner's designee to be informed of the prisoner's medical condition and prognosis, and of the procedures for recall and resentencing. This bill would require the warden or the warden's representative to contact a mentally unfit inmate's emergency contact and provide the contact with this information. This bill would also direct the warden or the warden's representative to keep the prisoner and the prisoner's designee apprised of the prisoner's medical condition and recall and resentencing proceedings. This bill would also provide that when a prisoner or his or her designee initiates recall and resentencing procedures, the chief medical officer and the warden or the warden's representative, if they find that the prisoner has of their finding, inform the prisoner or his or her designee of the recall and resentencing procedures. This bill would also require release of a prisoner who is resentenced within 48 hours of receipt of the court's order, unless the prisoner agrees to a longer time period, and would require that the prisoner be given his or her medical records, state identification, medications, and property at the time of release. Finally, this bill would require the Director of Corrections to issue a directive to Department of Corrections staff explaining recall and resentencing procedures. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. 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) Paragraph (1) shall not be construed to preclude programs, including educational programs, that are designed to rehabilitate nonviolent, first-time felony offenders. The Legislature encourages the development of policies and programs designed to educate and rehabilitate nonviolent, first-time felony offenders consistent with the purpose of imprisonment. (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 Director of Corrections. 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 Director of Corrections. (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 Director of Corrections, the court may, within 120 days of the date of commitment on its own motion, or at any time upon the recommendation of the Director of Corrections or the Board of Prison Terms, 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 Director of Corrections or the Board of Prison Terms or both determine that a prisoner satisfies the criteria set forth in paragraph (2), the director 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 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 medically incapacitated by a medical condition that renders him or her permanently unable to move without assistance, permanently unable to perform activities of daily living such as dressing, eating, ambulating, or maintaining personal hygiene without assistance, or permanently The Board of Prison Terms 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 director 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 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 Director of Corrections. 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 director determines that the prisoner satisfies the criteria set forth in paragraph (2), the director or board may recommend to the court that the prisoner's sentence be recalled. The director 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 director shall make a recommendation to the Board of Prison Terms 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 Director of Corrections or the Board of Prison Terms 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 medications, and all property belonging to the prisoner. After discharge, any additional records shall be sent to the prisoner's forwarding address. (10) The director 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 less to live is eligible for recall and resentencing consideration, and that recall and resentencing procedures shall be initiated upon that prognosis. (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. |