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AB-1629 Parole.(2007-2008)

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AB1629:v99#DOCUMENT


CALIFORNIA LEGISLATURE— 2007–2008 REGULAR SESSION

Assembly Bill
No. 1629

Introduced  by  Assembly Member Sharon Runner

February 23, 2007

An act to amend Sections 3041.5 and 3043.3 of, and to add Sections 190.07 and 3042.5 to, the Penal Code, relating to parole.


LEGISLATIVE COUNSEL'S DIGEST


AB 1629, as introduced, Sharon Runner. Parole.
Existing law establishes the penalty for a defendant found guilty of murder in the 2nd degree, who has served a prior prison term for murder in the first or 2nd degree, as confinement in the state prison for a term of life without the possibility of parole or confinement in the state prison for a term of 15 years to life.
This bill would provide that the penalty for a defendant found guilty of any felony committed while on parole, who has served a prior prison term for murder in the first or 2nd degree, is life without the possibility of parole. By changing the penalty of a crime, the bill would impose a state-mandated local program.
Under existing law, if a prisoner is denied parole, the Board of Parole Hearings is required to hear the prisoner’s case no later than up to 5 years after the hearing denying parole if the prisoner has been convicted of murder and the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing.
This bill would revise that provision to instead provide that if the board finds that it is not reasonable to expect parole would be granted in the following years, as specified, a parole hearing for a prisoner convicted of murder shall be held no sooner than 5, 10, or 15 years after any hearing at which parole is denied.
Existing law specifies that if the board defers a hearing for a prisoner convicted of murder for up to 5 years, the prisoner’s central file is required to be reviewed by a deputy commissioner within 3 years at which time the deputy commissioner may direct that a hearing be held within one year.
This bill would delete that procedure.
Existing law requires the Board of Parole Hearings to give notice of a parole suitability hearing for a prisoner, upon request, to a victim or next of kin if the victim has died. Under existing law, those people, or 2 members of the victim’s immediate family, have the right to appear and express their views for consideration by the board in its decision on parole for the prisoner. Existing law also requires the board to notify the prosecutor of the county in which the offense was committed and the Attorney General at least 30 days prior to the date of the hearing.
This bill would require the Board of Parole Hearings to hold all parole hearings at the prison location that is closest to the victim’s surviving immediate family.
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   Local Program: YES  

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


SECTION 1.

 Section 190.07 is added to the Penal Code, to read:

190.07.
 (a) The penalty for a defendant found guilty of any felony committed while on parole, who has served a prior prison term for murder in the first or second degree, shall be confinement in the state prison for a term of life without the possibility of parole. For purposes of this section, a prior prison term for murder of the first or second degree is that time period in which a defendant has spent actually incarcerated for his or her offense prior to release on parole.
(b) A prior prison term for murder for purposes of this section includes either of the following:
(1) A prison term served in any state prison or federal penal institution, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of confinement, as punishment for the commission of an offense which includes all of the elements of murder in the first or second degree as defined under California law.
(2) Incarceration at a facility operated by the Department of Corrections and Rehabilitation, Division of Juvenile Facilities, for murder of the first or second degree when the person was subject to the custody, control, and discipline of the Secretary of the Department of Corrections and Rehabilitation.
(c) The fact of a prior prison term for murder in the first or second degree shall be alleged in the accusatory pleading, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by the court sitting without a jury.
(d) In case of a reasonable doubt as to whether the defendant served a prior prison term for murder in the first or second degree, the defendant is entitled to a finding that the allegation is not true.
(e) If the trier of fact finds that the defendant has served a prior prison term for murder in the first or second degree, there shall be a separate penalty hearing before the same trier of fact, except as provided in subdivision (f).
(f) If the defendant was convicted by the court sitting without a jury, the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty or nolo contendere, the trier of fact shall be a jury unless a jury is waived by the defendant and the people.

SEC. 2.

 Section 3041.5 of the Penal Code is amended to read:

3041.5.
 (a) At all hearings for the purpose of reviewing a prisoner’s parole suitability, or the setting, postponing, or rescinding of parole dates, the following shall apply:
(1) At least 10 days prior to any hearing by the Board of Prison Terms Parole Hearings, the prisoner shall be permitted to review his or her file which will be examined by the board and shall have the opportunity to enter a written response to any material contained in the file.
(2) The prisoner shall be permitted to be present, to ask and answer questions, and to speak on his or her own behalf.
(3) Unless legal counsel is required by some other provision of law, a person designated by the Department of Corrections and Rehabilitation shall be present to insure ensure that all facts relevant to the decision be presented, including, if necessary, contradictory assertions as to matters of fact that have not been resolved by departmental or other procedures.
(4) The prisoner shall be permitted to request and receive a stenographic record of all proceedings.
(5) If the hearing is for the purpose of postponing or rescinding of parole dates, the prisoner shall have rights set forth in paragraphs (3) and (4) of subdivision (c) of Section 2932.
(b) (1) Within 10 days following any meeting where a parole date has been set, the board shall send the prisoner a written statement setting forth his or her parole date, the conditions he or she must meet in order to be released on the date set, and the consequences of failure to meet those conditions.
(2) Within 20 days following any meeting where a parole date has not been set for the reasons stated in subdivision (b) of Section 3041, the board shall send the prisoner a written statement setting forth the reason or reasons for refusal to set a parole date, and suggest activities in which he or she might participate that will benefit him or her while he or she is incarcerated.
The board shall hear each case annually thereafter, except the board may schedule the next hearing no later than the following as follows:
(A) Two No later than two years after any hearing at which parole is denied if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following year and states the bases for the finding.
(B) Up to five No sooner than 5, 10, or 15 years after any hearing at which parole is denied if the prisoner has been convicted of murder, and if the board finds that it is not reasonable to expect that parole would be granted at a hearing during the following years and states the bases for the finding in writing. If the board defers a hearing five years, the prisoner’s central file shall be reviewed by a deputy commissioner within three years at which time the deputy commissioner may direct that a hearing be held within one year. The prisoner shall be notified in writing of the deputy commissioner’s decision. The board shall adopt procedures that relate to the criteria for setting the hearing between two and five years.
(3) Within 10 days of any board action resulting in the postponement of a previously set parole date, the board shall send the prisoner a written statement setting forth a new date and the reason or reasons for that action and shall offer the prisoner an opportunity for review of that action.
(4) Within 10 days of any board action resulting in the rescinding of a previously set parole date, the board shall send the prisoner a written statement setting forth the reason or reasons for that action, and shall schedule the prisoner’s next hearing within 12 months and in accordance with paragraph (2).
(c) The changes made to this section by the act adding this subdivision shall apply only to hearings scheduled and decisions made regarding parole on or after the effective date of this act.

SEC. 3.

 Section 3042.5 is added to the Penal Code, to read:

3042.5.
 Notwithstanding any other provision, the Board of Parole Hearings shall hold all hearings for the purpose of reviewing a prisoner’s parole suitability, or the setting, postponing, or rescinding of parole dates, at the prison location that is closest to the victim’s immediate family, as defined in Section 3043.3.

SEC. 4.

 Section 3043.3 of the Penal Code is amended to read:

3043.3.
 As used in Sections 3042.5, 3043, 3043.1, 3043.2, and 3043.25, the term “immediate family” shall include the victim’s spouse, parent, grandparent, brother, sister, and children or grandchildren who are related by blood, marriage, or adoption. As used in Sections 3043 and 3043.2, the term “household member of the victim” means a person who lives, or was living at the time of the crime, in the victim’s household, and who has, or for a deceased victim had at the time of the crime, an intimate or close relationship with the victim.

SEC. 5.

 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.