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that these changes would be repealed on January 1, 2009.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.