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SB-94 Recall and resentencing: special circumstances.(2023-2024)

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Date Published: 09/07/2023 09:00 PM
SB94:v94#DOCUMENT

Amended  IN  Assembly  September 07, 2023
Amended  IN  Assembly  September 01, 2023
Amended  IN  Assembly  June 20, 2023
Amended  IN  Senate  May 18, 2023
Amended  IN  Senate  March 23, 2023

CALIFORNIA LEGISLATURE— 2023–2024 REGULAR SESSION

Senate Bill
No. 94

Introduced by Senator Cortese
(Principal coauthor: Senator Becker)
(Coauthors: Senators Skinner and Wiener)
(Coauthors: Assembly Members Jackson and Weber)

January 18, 2023

An act to amend Section 1170.02 of, and to add Section 1172.5 to, the Penal Code, relating to sentencing.


LEGISLATIVE COUNSEL'S DIGEST


SB 94, as amended, Cortese. Recall and resentencing: special circumstances.
Existing law provides for various specified special circumstances, including murder committed for financial gain or committed during the commission or attempted commission of certain felonies, which, if found true as specified, require a defendant found guilty of murder in the first degree to be sentenced to death or imprisonment for life without the possibility of parole. Existing law, added by Proposition 115 of the June 5, 1990, statewide primary election, prohibits a judge from striking or dismissing any special circumstance that is admitted by plea or found true by a jury or court, as specified. Existing law generally authorizes a court to dismiss an action or to strike or dismiss an enhancement in the furtherance of justice, except if dismissal of that enhancement is prohibited by any initiative statute.
This bill would authorize an individual serving a sentence of life imprisonment without the possibility of parole for a conviction in which one or more special circumstances were found to be true to petition for recall and resentencing if the offense occurred before June 5, 1990, and the individual has served at least 25 years in custody. The bill would exempt individuals from relief under these provisions under certain circumstances, including if the individual was convicted of first degree murder of a peace officer, as specified. The bill would authorize the court to modify the petitioner’s sentence to impose a lesser sentence and apply any changes in law that reduce sentences or provide for judicial discretion, or to vacate the petitioner’s conviction and impose judgment on a lesser included offense, as specified. The bill would require a court to consider and afford great weight to evidence offered by the petitioner to prove that specified mitigating circumstances are present. The bill would provide that proof of the presence of one or more specified mitigating circumstances weighs greatly in favor of dismissing a special circumstance, unless the court finds that dismissal of the special circumstance is not appropriate. The bill would require the court to appoint the State Public Defender or other qualified counsel for an indigent petitioner.
The California Constitution, as amended by Proposition 9, the Victims’ Bill of Rights Act of 2008: Marsy’s Law, at the November 4, 2008, statewide general election, entitles the victim of a crime to specified rights, including to reasonable notice of all public proceedings, including all parole or other postconviction release proceedings.
The bill would clarify that these proceedings constitute a “post-conviction release proceeding” under Marsy’s Law.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 The Legislature finds and declares all of the following:
(a) In the last 10 years, the Legislature has enacted numerous reforms to require judges to consider mitigating factors in sentencing, including: whether the individual to be sentenced is or was a victim of intimate partner violence, sexual violence, or human trafficking (AB 124 enacted in 2021); whether the individual experienced childhood trauma, including abuse, neglect, exploitation, or sexual violence (AB 124 enacted in 2021); whether the individual was young, meaning under 26 years of age, at the time of the offense (AB 124 enacted in 2021, SB 260 enacted in 2013, SB 261 enacted in 2015); whether the individual was a veteran and the conduct was related to trauma experienced in the military (AB 2098 enacted in 2014, AB 865 enacted in 2018, SB 1209 enacted in 2022); whether the individual suffers from cognitive impairment, intellectual disability, or mental illness (AB 2512 enacted in 2020, SB 215 enacted in 2018); and whether there was racial bias in the proceedings (AB 2542 enacted in 2021, AB 256 enacted in 2022).
(b) In the last 10 years, the Legislature has also enacted reforms recognizing that individuals are capable of redemption and requiring judges, when reviewing previously imposed sentences, to consider changed circumstances such as an individual’s rehabilitation while in custody, that the passage of time may significantly change the relevance of factors previously considered in sentencing, and that other changed circumstances may mean that an originally imposed sentence is no longer in the interest of justice (AB 1812 enacted in 2018, AB 2942 enacted in 2018, AB 1540 enacted in 2021, AB 960 enacted in 2022).
(c) It is necessary to correct sentences that would not be imposed today because of legal reforms enacted since an individual’s conviction. Judges should have the opportunity to take a second look at these sentences in light of evolving standards of decency and reforms that mandate the consideration of mitigating factors at sentencing such as youth, childhood trauma, victimization, race, military service and mental illness, and in light of changed circumstances, including an individual’s rehabilitation.
(d) While individuals sentenced to parole-eligible sentences have an opportunity for some of these mitigating factors and changed circumstances to be considered in the parole process, individuals sentenced to life without parole do not.
(e) It is the intent of the Legislature that judges be given an opportunity to review sentences of life without parole for offenses before June 5, 1990, to exercise their discretion in sentencing, considering mitigating factors and changed circumstances as now required in sentencing.

SEC. 2.

 Section 1170.02 of the Penal Code is amended to read:

1170.02.
 A prisoner is not eligible for resentence or recall pursuant to Section 1172.2 or 1172.5 if they were convicted of first-degree murder if the victim was a peace officer, as defined in Section 830.1, 830.2, 830.3, 830.31, 830.32, 830.33, 830.34, 830.35, 830.36, 830.37, 830.4, 830.5, 830.6, 830.10, 830.11, or 830.12, who was killed while engaged in the performance of their duties, and the individual knew, or reasonably should have known, that the victim was a peace officer engaged in the performance of their duties, or the victim was a peace officer or a former peace officer under any of the above-enumerated sections, and was intentionally killed in retaliation for the performance of their official duties.

SEC. 3.

 Section 1172.5 is added to the Penal Code, to read:

1172.5.
 (a) An individual serving a sentence of life imprisonment without possibility of parole for a conviction in which one or more of the special circumstances enumerated in Section 190.2 has been found true, may petition the court to recall the sentence and resentence to a lesser sentence if:
(1) The offense occurred before June 5, 1990.
(2) The individual has served at least 25 years in custody.
(b) An individual is not eligible for recall and resentencing pursuant to this section if any of the following circumstances apply:
(1) Recall and resentencing relief is prohibited by Section 1170.02.
(2) The individual was convicted of first-degree murder as the actual killer of three or more people.

(3)The individual was convicted of a sexual offense committed in conjunction with the homicide for which the petitioner is serving a sentence of life imprisonment without possibility of parole. As used in this paragraph, “sexual offense” means a violation of Section 261, 286, 288, 289, or former Section 262 or 288a.

(3) The individual was convicted of a sexual offense that requires registration pursuant to Section 290, or the facts of the offense for which the petitioner is serving a sentence of life imprisonment without possibility of parole as reflected in the jury verdict or admitted by the individual involved the commission of a sexual offense that would require registration pursuant to Section 290.
(c) (1) The petition shall be filed with the court that sentenced the petitioner and served on the district attorney, or on the agency that prosecuted the petitioner. The presiding judge shall designate a judge to rule on the petition. The petition shall include all of the following:
(A) A declaration by the petitioner that the petitioner is eligible for relief pursuant to subdivision (a).
(B) The superior court case number and date of the petitioner’s offense and conviction.
(C) Whether the petitioner currently has counsel and, if not, whether the petitioner is indigent.
(2) If any of the information required by this subdivision is missing from the petition and cannot be readily ascertained by the court, the court may deny the petition without prejudice to the filing of another petition and advise the petitioner that the matter cannot be considered without the missing information.
(d) The court shall review the petition and determine if it alleges the elements set forth in subdivision (a). If the subject of the petition does not have counsel and is indigent, the court shall appoint the State Public Defender or other qualified counsel to represent the individual. If counsel is newly appointed, they may file a supplementary petition within 60 days. The prosecutor may file and serve a response within 60 days of service of the petition or supplementary petition and the petitioner may file and serve a reply within 30 days after the prosecutor response is served. These deadlines shall be extended for good cause.
(e) A resentencing hearing ordered under this section constitutes a “post-conviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law). Consistent with Section 28 of Article I of the California Constitution, the prosecutor shall provide notice of the hearing to the victim, if the victim has requested to be notified, and the court shall provide the victim an opportunity to be heard regarding sentencing, if requested by the victim. As used in this subdivision, “victim” means the same as defined in subdivision (e) of Section 28 of Article I of the California Constitution.
(f) (1) Within 60 days after the reply is filed, the court shall hold a hearing to determine whether to recall the sentence and resentence the petitioner. This deadline may be extended for good cause.
(2) The resentencing court may, in the interest of justice and regardless of whether the original sentence was imposed after a trial or plea agreement, do the following:
(A) May modify the petitioner’s sentence to impose a lesser sentence, and apply any changes in law that reduce sentences or provide for judicial discretion.
(B) May vacate the petitioner’s conviction and impose judgment on any necessarily included lesser offense, whether or not that offense was charged in the original pleading, and then resentence the petitioner to a lesser sentence.
(3) The parties may waive a resentencing hearing and stipulate that the petitioner is eligible for recall and resentencing.
(4) A petitioner who is resentenced pursuant to this section shall be given credit for time served.
(5) Resentencing under this subdivision shall only result in a minimum sentence of 25 years to life with the possibility of parole, followed by review by the Board of Parole Hearings pursuant to Article 3 (commencing with Section 3040) of Chapter 8 of Title 1 of Part 3. 3, and shall not result in a sentence greater than the initial sentence.
(6) The court shall state on the record the reasons for its decision to grant or deny recall and resentencing.
(g) (1) In considering a petition pursuant to this section, the court shall consider and afford great weight to evidence offered by the petitioner to prove that any of the following mitigating circumstances are present:
(A) The petitioner was a victim of intimate partner violence, sexual violence, or human trafficking.
(B) The petitioner experienced childhood trauma, including abuse, neglect, exploitation, or sexual violence.
(C) The petitioner is a veteran and the conduct involved in the offense related to trauma experienced in the military.
(D) The petitioner has been diagnosed with cognitive impairment, intellectual disability, or mental illness.
(E) The petitioner was a youth, as defined under subdivision (b) of Section 1016.7 at the time of offense.
(F) The sentence violates Section 745 (the California Racial Justice Act of 2020).
(G) The petitioner’s age, time served, or diminished physical condition reduces the petitioner’s risk for future violence.
(2) Proof of the presence of one or more of these circumstances weighs greatly in favor of dismissing the special circumstance, unless the court, in its discretion, finds in the interest of justice that dismissing the special circumstance is not appropriate.
(h) The court shall consider postconviction factors, including, but not limited to, the disciplinary record and record of rehabilitation of the petitioner while incarcerated, and evidence that reflects that circumstances have changed since the original sentencing so that the sentence originally imposed is no longer in the interest of justice.
(i) This section does not diminish or abrogate any rights or remedies otherwise available to the subject of the petition.
(j) If the judge declines to impose a reduced sentence, two subsequent petitions pursuant to this section may be filed if at least three years have passed from the denial of the prior application.
(k) The petitioner may appear remotely, and the court may conduct the hearing through the use of remote technology, unless counsel requests their physical presence in court and if not otherwise prohibited by state law.