California: SB399 Bill Text

BILL NUMBER: SB 399      AMENDED BILL TEXT

 SECTION 1.  Section 1170 of the Penal Code

AS AMENDED JUNE 22, 2010

(e) (1) When a defendant who was under 18 years of age at the time
of the commission of the offense for which the defendant was
sentenced to imprisonment for life without the possibility of parole
has served at least 10 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing, provided that defendants who have served 10 or
more years but not more than 15 years as of
January 1, 2010 2011 , shall not be
permitted to submit a petition for recall and resentencing pursuant
to this subdivision until they have served 15 years. Defendants who
have served 15 or more years but less than 25 years as of January 1,
2010 2011 , shall be permitted to
submit a petition for recall and resentencing as follows:
   (A) Those defendants who entered custody prior to July 1, 1993,
may submit a petition in 2010 2011 .
   (B) Those defendants who entered custody on or after July 1, 1993,
but prior to January 1, 1994, may submit a petition in 2011
2012 .
   (C) Those defendants who entered custody on or after January 1,
1994, but prior to July 1, 1994, may submit a petition in
2012 2013 .
   (D) Those defendants who entered custody on or after July 1, 1994,
but prior to January 1, 1995 1996 ,
may submit a petition in 2013 2014 .
   (2) The defendant shall file the original petition with the
sentencing court. A copy of the petition shall be served on the
agency that prosecuted the case. The petition shall include the
defendant’s statement that he or she was under 18 years of age at the
time of the crime, was sentenced to life in prison without the
possibility of parole, and that one of the following is true:
   (A) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
   (B) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
   (C) The defendant committed the offense with at least one adult
codefendant.
   (D) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
   (3) If any of the information required in paragraph (2) is missing
from the petition, or if proof of service on the prosecuting agency
is not provided, the court shall return the petition to the defendant
and advise the defendant that the matter cannot be considered
without the missing information. The defendant may resubmit a
petition with the information or proof of service.
   (4) A reply to the petition, if any, shall be filed with the court
within 60 days of the date on which the prosecuting agency was
served with the petition, unless a continuance is granted for good
cause.
   (5) If the court finds by a preponderance of the evidence that the
statements in the petition are true, the court shall hold a hearing
to consider whether to recall the sentence and commitment previously
ordered and to resentence the defendant in the same manner as if the
defendant had not previously been sentenced, provided that the new
sentence, if any, is not greater than the initial sentence. Victims,
or victim family members if the victim is deceased, shall retain the
rights right to participate in the
hearing.
   (6) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
   (A) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
   (B) The defendant does not have juvenile felony adjudications for
assault or other felony crimes with a significant potential for
personal harm to victims prior to the offense for which the sentence
is being considered for recall.
   (C) The defendant committed the offense with at least one adult
codefendant.
   (D) Prior to the offense for which the sentence is being
considered for recall, the defendant had insufficient adult support
or supervision and had suffered from psychological or physical
trauma, or significant stress.
   (E) The defendant suffers from cognitive limitations due to mental
illness, developmental disabilities, or other factors that did not
constitute a defense, but influenced the defendant’s involvement in
the offense.
   (F) The defendant has performed acts that tend to indicate
rehabilitation or the potential for rehabilitation, including, but
not limited to, availing himself or herself of rehabilitative,
educational, or vocational programs, if those programs have been
available at his or her classification level and facility, using
self-study for self-improvement, or showing evidence of remorse.
   (G) The defendant has maintained family ties or connections with
others through letter writing, calls, or visits, or has eliminated
contact with individuals outside of prison who are currently involved
with crime.
   (H) The defendant has had no disciplinary actions for violent
activities in the last five years in which the defendant was
determined to be the aggressor.
   (7) The court shall have the discretion to recall the sentence and
commitment previously ordered and to resentence the defendant in the
same manner as if the defendant had not previously been sentenced,
provided that the new sentence, if any, is not greater than the
initial sentence. The discretion of the court shall be exercised in
consideration of the criteria in paragraph (2)
(6) . Victims, or victim family members if the victim is
deceased, shall be notified of the resentencing hearing and shall
retain their rights to participate in the hearing.
   (8) If the sentence is not recalled, the defendant may submit
another petition for recall and resentencing to the sentencing court
when the defendant has been committed to the custody of the
department for at least 15 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 20 years. If recall and resentencing is not
granted under that petition, the defendant may file another petition
after having served 24 years. The final petition may be submitted,
and the response to that petition shall be determined, during the
25th year of the defendant’s sentence.
   (9) In addition to the criteria in paragraph (2)
(6) , the court may consider any other criteria
that the court deems relevant to its decision, so long as the court
identifies them on the record, provides a statement of reasons for
adopting them, and states why the defendant does or does not satisfy
the criteria.
   (10) This subdivision shall have retroactive application.
 

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