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AB-1310 Sentencing: recall and resentencing.(2023-2024)

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Date Published: 07/13/2023 09:00 PM
AB1310:v94#DOCUMENT

Amended  IN  Senate  July 13, 2023
Amended  IN  Senate  June 26, 2023
Amended  IN  Assembly  May 18, 2023
Amended  IN  Assembly  March 29, 2023
Amended  IN  Assembly  March 22, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Assembly Bill
No. 1310

Introduced by Assembly Member McKinnor

February 16, 2023

An act to add Section 1385.2 to the Penal Code, relating to sentencing.


LEGISLATIVE COUNSEL'S DIGEST


AB 1310, as amended, McKinnor. Sentencing: recall and resentencing.
Existing law generally authorizes a court to, in the furtherance of justice, dismiss an enhancement. Existing law makes a person who personally uses a firearm in the commission of a felony punishable by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years. Existing law makes a person who personally uses a firearm in the commission of specified felonies punishable by imprisonment in the state prison for an additional and consecutive term of 10 years, and makes them punishable by an additional and consecutive term of imprisonment of 20 years if they discharge the firearm. Existing law makes a person who discharges a firearm and causes great bodily injury in the commission of specified felonies punishable by an additional and consecutive term of imprisonment of 25 years to life. Existing law, until January 1, 2018, prohibited courts from striking those firearm enhancements. Existing law on and after January 1, 2022, requires a court to dismiss an enhancement if it is in furtherance of justice to do so, except as specified.
This bill would require the Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator to identify persons in custody, who, on or before January 1, 2018, suffered a conviction of those firearm enhancements. By requiring county correctional administrators to identify qualifying persons in custody, this bill would impose a state-mandated local program. Upon determining the person qualifies for resentencing, the bill would require the trial court to appoint counsel, counsel and impose a lesser sentence than the one originally imposed, unless the court finds by clear and convincing evidence that a lesser sentence would present an unreasonable risk of danger to public safety. authorize the court to strike or dismiss an enhancement, as specified. By imposing additional duties on county public defenders, this bill would impose a state-mandated local program.
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, if the Commission on State Mandates determines that the bill contains costs mandated by the state, reimbursement for those costs shall be made pursuant to the statutory provisions noted above.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 Section 1385.2 is added to the Penal Code, to read:

1385.2.
 (a) A person who, on or before January 1, 2018, suffered a conviction, whether by trial or plea, of an enhancement under Section 12022.5 or 12022.53 is eligible for recall and resentencing. The Secretary of the Department of Corrections and Rehabilitation and the county correctional administrator of each county shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement under Section 12022.5 or 12022.53 and shall provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:
(1) A person who has completed their sentence, after trial or plea and following a judgment that includes a Section 12022.5 or 12022.53 enhancement, may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions recalled and vacated pursuant to this section.
(2) For persons currently serving a term for a judgment that includes an enhancement under Section 12022.5 or 12022.53, the Secretary of the Department of Corrections and Rehabilitation shall identify those persons in their custody currently serving a term for a judgment that includes an enhancement under Section 12022.5 or 12022.53 and provide the name of each person, along with the person’s date of birth and the relevant case number or docket number, to the sentencing court that imposed the enhancement. This information shall be provided as follows:

(1)

(A) By March 1, 2024, for individuals who have served their base term and any other enhancements and are currently serving a sentence based on a Section 12022.5 or 12022.53 enhancement. For purposes of this paragraph, all other enhancements shall be considered to have been served first.

(2)

(B) By July 1, 2024, for all other individuals.
(b) Upon receiving the information described in subdivision (a), the court shall review the judgment and verify that the current judgment includes a sentence enhancement under Section 12022.5 or 12022.53. If the court determines that the current judgment includes a Section 12022.5 or 12022.53 enhancement, the court shall appoint counsel for the defendant, recall the sentence, and resentence the defendant. defendant and recall the sentence of the defendant. The review and resentencing shall be completed as follows:
(1) By October 1, 2024, for individuals who have served their base term and any other enhancement and are currently serving a sentence based on the enhancement.
(2) By December 1, 2025, for all other individuals.

(c)In exercising its discretion under this section, the court shall consider and afford great weight to evidence offered by the defendant to prove that any of the mitigating circumstances in paragraphs (1) to (10) are present. Resentencing pursuant to this section shall result in a lesser sentence, unless the original enhancement was imposed concurrently or stayed and no other provision requires further reduction, or the court finds by clear and convincing evidence that imposing a lesser sentence would present an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18. Resentencing pursuant to this section shall not result in a longer sentence than the one originally imposed. The court shall apply the sentencing rules of the Judicial Council and apply any other changes in law that reduce sentences or provide for judicial discretion so as to eliminate disparity of sentences and to promote uniformity of sentencing.

(1)Application of the enhancement would result in a discriminatory racial impact as described in paragraph (4) of subdivision (a) of Section 745.

(2)Multiple enhancements are alleged in a single case. In this instance, all enhancements beyond a single enhancement shall be dismissed.

(3)The application of an enhancement could result in a sentence of over 20 years. In this instance, the enhancement shall be dismissed.

(4)The current offense is connected to mental illness.

(5)The current offense is connected to prior victimization or childhood trauma.

(6)The current offense is not a violent felony as defined in subdivision (c) of Section 667.5.

(7)The defendant was a juvenile when they committed the current offense or any prior juvenile adjudication that triggers the enhancement or enhancements applied in this case.

(8)The enhancement is based on a prior conviction that is over five years old.

(9)Though a firearm was used in the current offense, it was inoperable or unloaded.

(10)The court may consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the defendant while incarcerated, evidence that reflects whether age, time served, and diminished physical condition, if any, have reduced the defendant’s risk for future violence, and evidence that reflects that circumstances have changed since the original sentencing so that continued incarceration is no longer in the interest of justice.

(d)The circumstances listed in subdivision (c) are not exclusive and the court maintains authority to dismiss or strike an enhancement in accordance with subdivision (c).

(e)For the purposes of paragraph (4) of subdivision (c), a mental illness is a mental disorder as identified in the most recent edition of the Diagnostic and Statistical Manual of Mental Disorders, including, but not limited to, bipolar disorder, schizophrenia, schizoaffective disorder, or post-traumatic stress disorder, but excluding antisocial personality disorder, borderline personality disorder, and pedophilia. A court may conclude that a defendant’s mental illness was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, statements by the defendant’s mental health treatment provider, medical records, records or reports by qualified medical experts, or evidence that the defendant displayed symptoms consistent with the relevant mental disorder at or near the time of the offense, the court concludes that the defendant’s mental illness substantially contributed to the defendant’s involvement in the commission of the offense.

(f)For the purposes of this subdivision, the following terms have the following meanings:

(1)“Childhood trauma” means that as a minor the person experienced physical, emotional, or sexual abuse, physical or emotional neglect. A court may conclude that a defendant’s childhood trauma was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s childhood trauma substantially contributed to the defendant’s involvement in the commission of the offense.

(2)“Prior victimization” means the person was a victim of intimate partner violence, sexual violence, or human trafficking, or the person has experienced psychological or physical trauma, including, but not limited to, abuse, neglect, exploitation, or sexual violence. A court may conclude that a defendant’s prior victimization was connected to the offense if, after reviewing any relevant and credible evidence, including, but not limited to, police reports, preliminary hearing transcripts, witness statements, medical records, or records or reports by qualified medical experts, the court concludes that the defendant’s prior victimization substantially contributed to the defendant’s involvement in the commission of the offense.

(c) The court may, in the interest of justice pursuant to Section 1385 and at the time of resentencing, strike or dismiss an enhancement that was imposed by Section 12022.5 or 12022.53.

(g)

(d) A person who is resentenced pursuant to subdivision (c) shall be given credit for time served and shall be subject to parole for one year following completion of their sentence, unless the court, in its discretion, as part of its resentencing order, releases the person from parole. The person shall be subject to parole supervision by the Department of Corrections and Rehabilitation pursuant to Section 3000.08 and the jurisdiction of the court in the county in which the parolee is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke parole and impose a term of custody.

(h)A person who has completed their sentence for a conviction, whether by trial or plea, of an enhancement described in subdivision (a) may file an application before the trial court that entered the judgment of conviction in their case to have the enhancement conviction or convictions reconsidered pursuant to this section.

(i)If the application satisfies the criteria in subdivision (h), the court may vacate the enhancement convictions.

(j)

(e) If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.

(k)

(f) This section does not diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.

(l)

(g) Resentencing pursuant to this section does not diminish or abrogate the finality of judgments in any case that does not come within the purview of this section.

(m)

(h) A resentencing hearing ordered under this section shall constitute a “postconviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law).

(n)

(i) (1) A person who is committed to a state hospital after being found not guilty by reason of insanity pursuant to Section 1026 may petition the court to have their maximum term of commitment, as established by Section 1026.5, reconsidered in accordance with this section. Upon receiving a petition under this subdivision, the court shall determine whether the petitioner satisfies the criteria in subdivision (a). If the petitioner satisfies the criteria in subdivision (a), the court shall proceed in accordance with this section. In order for the maximum term of commitment to be reduced, the person shall have met all of the criteria for a modification of sentence pursuant to this section, had the person been found guilty.
(2) If a petitioner’s maximum term of confinement is ordered reduced under this subdivision, the new term of confinement shall provide opportunity to meet requirements provided in subdivision (b) of Section 1026.5. If a petitioner’s new maximum term of confinement ordered under this section does not provide sufficient time to meet requirements provided in subdivision (b) of Section 1026.5, the new maximum term of confinement may be extended, not more than 240 days from the date the petition is granted, in order to meet requirements provided in subdivision (b) of Section 1026.5.

(o)

(j) Resentencing may be granted without a hearing upon stipulation by the parties. Resentencing shall not be denied, nor a stipulation rejected, without a hearing where the parties have an opportunity to address the basis for the intended denial or rejection. If a hearing is held, the defendant may appear remotely and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court.

SEC. 2.

 If the Commission on State Mandates determines that this act contains costs mandated by the state, reimbursement to local agencies and school districts for those costs shall be made pursuant to Part 7 (commencing with Section 17500) of Division 4 of Title 2 of the Government Code.