MEASURE :  A.B. No. 675
AUTHOR(S) :  Migden (Coauthor: Koretz).
TOPIC :  Sentencing.
HOUSE LOCATION :  SEN
+LAST AMENDED DATE  :  05/07/2001
 

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

LAST HIST. ACT. DATE:  07/17/2001
LAST HIST. ACTION   :  Read second time.  To third reading.
FILE :  SEN THIRD READING
FILE DATE :  08/28/2001
ITEM : 152

COMM. LOCATION :  SEN APPROPRIATIONS

TITLE :  An act to amend Section 1170 of the Penal Code, relating
 to sentencing.

BILL NUMBER: AB 675 AMENDED
 BILL TEXT

 AMENDED IN ASSEMBLY  MAY 7, 2001
 AMENDED IN ASSEMBLY  APRIL 17, 2001

INTRODUCED BY   Assembly Member Migden
   (Coauthor:  Assembly Member Koretz)

                        FEBRUARY 22, 2001

   An act to amend Section 1170 of the Penal Code, relating to
sentencing.
 
 

 LEGISLATIVE COUNSEL'S DIGEST
 

   AB 675, as amended, Migden.  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.
   This bill would make prisoners who are diagnosed with a disease
that would produce death within 12 months, and whose release is
deemed not to threaten public safety, eligible to have their
sentences recalled and to be resentenced.  This bill would also
oblige a physician employed by the Department of Corrections who
determines that a prisoner has 12 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 12
months or less to live, shall, within 48 hours 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 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 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 12
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 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 12 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 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.
   (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 12 months or 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.