BILL NUMBER: AB 2499 CHAPTERED
BILL TEXT
CHAPTER 612
FILED WITH SECRETARY OF STATE SEPTEMBER 26, 2014
APPROVED BY GOVERNOR SEPTEMBER 26, 2014
PASSED THE SENATE AUGUST 11, 2014
PASSED THE ASSEMBLY AUGUST 18, 2014
AMENDED IN SENATE JULY 3, 2014
AMENDED IN SENATE JULY 1, 2014
AMENDED IN ASSEMBLY APRIL 21, 2014
INTRODUCED BY Assembly Member Bonilla
FEBRUARY 21, 2014
An act to amend Sections 1170, 1203.016, 1203.018, 2900.5, and
4019 of the Penal Code, relating to offenders.
LEGISLATIVE COUNSEL'S DIGEST
AB 2499, Bonilla. Offenders: home detention programs.
Existing law, subject to exceptions, generally makes persons
convicted of a felony subject to incarceration in a county jail.
Existing law requires, unless the court finds it is not in the
interest of justice, that a period of the concluding portion of a
county jail term be served on mandatory supervision, which is a
period of suspended execution of the term supervised by county
probation. Existing law provides that mandatory supervision commences
upon release from custody.
This bill would instead provide that unless otherwise ordered by
the court, mandatory supervision would commence upon release from
physical custody or an alternative custody program, whichever is
later.
Existing law provides that the board of supervisors of any county
may authorize the correctional administrator to offer a program under
which inmates committed to a county jail or other county
correctional facility or granted probation, or inmates participating
in a work furlough program, may voluntarily participate or
involuntarily be placed in a home detention program during their
sentence in lieu of confinement in the county jail or other county
correctional facility or program. Existing law requires the
correctional administrator to provide specified information about a
participant upon request of the police department of a city where an
office is located to which persons on an electronic monitoring
program report. Existing law requires any information received by a
police department pursuant to that request to be used only for the
purpose of monitoring the impact of home electronic monitoring
programs in the community.
This bill would add to the information subject to those requests,
at the discretion of the corrections administrator and solely for
investigatory purposes, current and historic GPS location data, if
available. The bill would recast the provisions restricting the use
of that information to prohibit a law enforcement department that
does not have the primary responsibility to supervise participants in
the electronic monitoring program that receives the requested
information from using the information to conduct enforcement actions
based on administrative violations of the home detention program.
The bill would require a law enforcement department that has
knowledge that the subject in a criminal investigation is a
participant in an electronic monitoring program to make reasonable
efforts to notify the supervising agency prior to serving a warrant
or taking any law enforcement action against a participant in an
electronic monitoring program.
By imposing additional requirements on local agencies, this bill
would impose a state-mandated local program.
Existing law provides that the county board of supervisors may
authorize the correctional administrator to offer a program under
which inmates being held in lieu of bail in a county jail or other
county correctional facility may participate in an electronic
monitoring program if certain conditions are met. Existing law
requires the correctional administrator to provide specified
information about a participant upon request of a local law
enforcement agency with jurisdiction over the location where a
participant in an electronic monitoring program is placed. Existing
law requires any information received by a law enforcement agency
pursuant to that request to be used only for the purpose of
monitoring the impact of home electronic monitoring programs in the
community.
This bill would add to the information subject to those requests,
at the discretion of the corrections administrator and solely for
investigatory purposes, current and historic GPS location data, if
available. The bill would recast the provisions restricting the use
of that information to prohibit a law enforcement agency that does
not have the primary responsibility to supervise participants in the
electronic monitoring program that receives the requested information
from using the information to conduct enforcement actions based on
administrative violations of the home detention program. The bill
would require that an agency that has knowledge that the subject in a
criminal investigation is a participant in an electronic monitoring
program to make reasonable efforts to notify the supervising agency
prior to serving a warrant or taking any law enforcement action
against a participant in an electronic monitoring program.
By imposing additional requirements on local agencies, this bill
would impose a state-mandated local program.
Existing law requires that when a defendant has been in custody,
including, but not limited to, any time spent in a jail, camp, work
furlough facility, and other specified facilities, all days of
custody of the defendant, including, home detention for inmates who
otherwise would be in jail in lieu of bail, are credited toward the
term of imprisonment or toward any fine. Existing law also provides
that the time spent in these facilities or programs qualifies as
mandatory time in jail if the statute under which the defendant is
sentenced requires a mandatory minimum period of time in jail.
This bill would include other home detention programs for the
purpose of crediting days in custody for those purposes. The bill
would remove the requirement that the statute under which the
defendant is sentenced requires a mandatory minimum period of time in
jail in order for the time spent in those facilities or programs to
qualify as mandatory time in jail.
By increasing the administrative responsibilities of local
agencies, this bill would impose a state-mandated local program.
Existing law provides that a prisoner, who, for specified reasons,
is confined in or committed to a county jail, industrial farm, or
road camp, or any city jail, industrial farm, or road camp, shall,
for each 4-day period of custody, have one day deducted from the
prisoner's period of confinement, unless it appears by the record
that the prisoner has refused to satisfactorily perform labor as
assigned by the sheriff, chief of police, or superintendent of an
industrial farm or road camp. Existing law additionally requires for
those prisoners, that for every 4 days of confinement, one day to be
deducted from the prisoner's period of confinement, unless it appears
by the record that the prisoner has not satisfactorily complied with
the reasonable rules and regulations established by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.
This bill would apply those provisions to persons who are
participants in specified home detention programs.
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 these
statutory provisions.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 1170 of the Penal Code, as amended by Section
16 of Chapter 26 of the Statutes of 2014, 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, except as provided in paragraph (2) of subdivision
(d). 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. 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 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) (1) 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, 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 court
resentencing 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.
(2) (A) (i) 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 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where the
defendant tortured, as described in Section 206, his or her victim
or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) 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 and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(C) If any of the information required in subparagraph (B) 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.
(D) 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.
(E) 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 to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(G) 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 subparagraph (B). 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.
(H) 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 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.
(I) In addition to the criteria in subparagraph (F), 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.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary 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 that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(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.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
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) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). 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 shall 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.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(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) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (A) Unless the court finds that, in the interests of justice,
it is not appropriate in a particular case, the court, when imposing
a sentence pursuant to paragraph (1) or (2), shall suspend execution
of a concluding portion of the term for a period selected at the
court's discretion.
(B) The portion of a defendant's sentenced term that is suspended
pursuant to this paragraph shall be known as mandatory supervision,
and, unless otherwise ordered by the court, shall commence upon
release from physical custody or an alternative custody program,
whichever is later. During the period of mandatory supervision, the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under such supervision,
unless in actual custody related to the sentence imposed by the
court, the defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court. Any time
period which is suspended because a person has absconded shall not be
credited toward the period of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that
added this paragraph shall become effective and operative on January
1, 2015, and shall be applied prospectively to any person sentenced
on or after January 1, 2015.
(i) This section shall remain in effect only until January 1,
2017, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date.
SEC. 2. Section 1170 of the Penal Code, as amended by Section 17
of Chapter 26 of the Statutes of 2014, 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, except as provided in paragraph (2) of subdivision
(d). 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. 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) (1) 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, 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 court
resentencing 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.
(2) (A) (i) 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 15 years of that sentence, the defendant may
submit to the sentencing court a petition for recall and
resentencing.
(ii) Notwithstanding clause (i), this paragraph shall not apply to
defendants sentenced to life without parole for an offense where the
defendant tortured, as described in Section 206, his or her victim
or the victim was a public safety official, including any law
enforcement personnel mentioned in Chapter 4.5 (commencing with
Section 830) of Title 3, or any firefighter as described in Section
245.1, as well as any other officer in any segment of law enforcement
who is employed by the federal government, the state, or any of its
political subdivisions.
(B) 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 and was sentenced to life in prison without the
possibility of parole, the defendant's statement describing his or
her remorse and work towards rehabilitation, and the defendant's
statement that one of the following is true:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(C) If any of the information required in subparagraph (B) 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.
(D) 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.
(E) 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 to participate in the hearing.
(F) The factors that the court may consider when determining
whether to recall and resentence include, but are not limited to, the
following:
(i) The defendant was convicted pursuant to felony murder or
aiding and abetting murder provisions of law.
(ii) 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.
(iii) The defendant committed the offense with at least one adult
codefendant.
(iv) 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.
(v) 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.
(vi) 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.
(vii) 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.
(viii) 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.
(G) 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 subparagraph (B). 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.
(H) 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 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.
(I) In addition to the criteria in subparagraph (F), 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.
(J) This subdivision shall have retroactive application.
(e) (1) Notwithstanding any other law and consistent with
paragraph (1) of subdivision (a), if the secretary 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 that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(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.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.
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) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). 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 shall 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.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(f) Notwithstanding any other provision of this section, for
purposes of paragraph (3) of subdivision (h), any allegation that a
defendant is eligible for state prison due to a prior or current
conviction, sentence enhancement, or because he or she is required to
register as a sex offender shall not be subject to dismissal
pursuant to Section 1385.
(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) (1) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision where the term is not specified in the
underlying offense shall be punishable by a term of imprisonment in a
county jail for 16 months, or two or three years.
(2) Except as provided in paragraph (3), a felony punishable
pursuant to this subdivision shall be punishable by imprisonment in a
county jail for the term described in the underlying offense.
(3) Notwithstanding paragraphs (1) and (2), where the defendant
(A) has a prior or current felony conviction for a serious felony
described in subdivision (c) of Section 1192.7 or a prior or current
conviction for a violent felony described in subdivision (c) of
Section 667.5, (B) has a prior felony conviction in another
jurisdiction for an offense that has all the elements of a serious
felony described in subdivision (c) of Section 1192.7 or a violent
felony described in subdivision (c) of Section 667.5, (C) is required
to register as a sex offender pursuant to Chapter 5.5 (commencing
with Section 290) of Title 9 of Part 1, or (D) is convicted of a
crime and as part of the sentence an enhancement pursuant to Section
186.11 is imposed, an executed sentence for a felony punishable
pursuant to this subdivision shall be served in state prison.
(4) Nothing in this subdivision shall be construed to prevent
other dispositions authorized by law, including pretrial diversion,
deferred entry of judgment, or an order granting probation pursuant
to Section 1203.1.
(5) (A) Unless the court finds, in the interest of justice, that
it is not appropriate in a particular case, the court, when imposing
a sentence pursuant to paragraph (1) or (2), shall suspend execution
of a concluding portion of the term for a period selected at the
court's discretion.
(B) The portion of a defendant's sentenced term that is suspended
pursuant to this paragraph shall be known as mandatory supervision,
and, unless otherwise ordered by the court, shall commence upon
release from physical custody or an alternative custody program,
whichever is later. During the period of mandatory supervision, the
defendant shall be supervised by the county probation officer in
accordance with the terms, conditions, and procedures generally
applicable to persons placed on probation, for the remaining unserved
portion of the sentence imposed by the court. The period of
supervision shall be mandatory, and may not be earlier terminated
except by court order. Any proceeding to revoke or modify mandatory
supervision under this subparagraph shall be conducted pursuant to
either subdivisions (a) and (b) of Section 1203.2 or Section 1203.3.
During the period when the defendant is under such supervision,
unless in actual custody related to the sentence imposed by the
court, the defendant shall be entitled to only actual time credit
against the term of imprisonment imposed by the court. Any time
period which is suspended because a person has absconded shall not be
credited toward the period of supervision.
(6) The sentencing changes made by the act that added this
subdivision shall be applied prospectively to any person sentenced on
or after October 1, 2011.
(7) The sentencing changes made to paragraph (5) by the act that
added this paragraph shall become effective and operative on January
1, 2015, and shall be applied prospectively to any person sentenced
on or after January 1, 2015.
(i) This section shall become operative on January 1, 2017.
SEC. 3. Section 1203.016 of the Penal Code is amended to read:
1203.016. (a) Notwithstanding any other law, the board of
supervisors of any county may authorize the correctional
administrator, as defined in subdivision (h), to offer a program
under which inmates committed to a county jail or other county
correctional facility or granted probation, or inmates participating
in a work furlough program, may voluntarily participate or
involuntarily be placed in a home detention program during their
sentence in lieu of confinement in the county jail or other county
correctional facility or program under the auspices of the probation
officer.
(b) The board of supervisors, in consultation with the
correctional administrator, may prescribe reasonable rules and
regulations under which a home detention program may operate. As a
condition of participation in the home detention program, the inmate
shall give his or her consent in writing to participate in the home
detention program and shall in writing agree to comply or, for
involuntary participation, the inmate shall be informed in writing
that he or she shall comply, with the rules and regulations of the
program, including, but not limited to, the following rules:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the correctional
administrator.
(2) The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any time
for purposes of verifying the participant's compliance with the
conditions of his or her detention.
(3) The participant shall agree to the use of electronic
monitoring, which may include global positioning system devices or
other supervising devices for the purpose of helping to verify his or
her compliance with the rules and regulations of the home detention
program. The devices shall not be used to eavesdrop or record any
conversation, except a conversation between the participant and the
person supervising the participant which is to be used solely for the
purposes of voice identification.
(4) The participant shall agree that the correctional
administrator in charge of the county correctional facility from
which the participant was released may, without further order of the
court, immediately retake the person into custody to serve the
balance of his or her sentence if the electronic monitoring or
supervising devices are unable for any reason to properly perform
their function at the designated place of home detention, if the
person fails to remain within the place of home detention as
stipulated in the agreement, if the person willfully fails to pay
fees to the provider of electronic home detention services, as
stipulated in the agreement, subsequent to the written notification
of the participant that the payment has not been received and that
return to custody may result, or if the person for any other reason
no longer meets the established criteria under this section. A copy
of the agreement shall be delivered to the participant and a copy
retained by the correctional administrator.
(c) Whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the correctional administrator, and without
a warrant of arrest, retake the person into custody to complete the
remainder of the original sentence.
(d) Nothing in this section shall be construed to require the
correctional administrator to allow a person to participate in this
program if it appears from the record that the person has not
satisfactorily complied with reasonable rules and regulations while
in custody. A person shall be eligible for participation in a home
detention program only if the correctional administrator concludes
that the person meets the criteria for release established under this
section and that the person's participation is consistent with any
reasonable rules and regulations prescribed by the board of
supervisors or the administrative policy of the correctional
administrator.
(1) The rules and regulations and administrative policy of the
program shall be written and reviewed on an annual basis by the
county board of supervisors and the correctional administrator. The
rules and regulations shall be given to or made available to any
participant upon request.
(2) The correctional administrator, or his or her designee, shall
have the sole discretionary authority to permit program participation
as an alternative to physical custody. All persons referred or
recommended by the court to participate in the home detention program
pursuant to subdivision (e) who are denied participation or all
persons removed from program participation shall be notified in
writing of the specific reasons for the denial or removal. The notice
of denial or removal shall include the participant's appeal rights,
as established by program administrative policy.
(e) The court may recommend or refer a person to the correctional
administrator for consideration for placement in the home detention
program. The recommendation or referral of the court shall be given
great weight in the determination of acceptance or denial. At the
time of sentencing or at any time that the court deems it necessary,
the court may restrict or deny the defendant's participation in a
home detention program.
(f) The correctional administrator may permit home detention
program participants to seek and retain employment in the community,
attend psychological counseling sessions or educational or vocational
training classes, or seek medical and dental assistance. Willful
failure of the program participant to return to the place of home
detention not later than the expiration of any period of time during
which he or she is authorized to be away from the place of home
detention pursuant to this section and unauthorized departures from
the place of home detention are punishable as provided in Section
4532.
(g) The board of supervisors may prescribe a program
administrative fee to be paid by each home detention participant that
shall be determined according to his or her ability to pay.
Inability to pay all or a portion of the program fees shall not
preclude participation in the program, and eligibility shall not be
enhanced by reason of ability to pay. All program administration and
supervision fees shall be administered in compliance with Section
1208.2.
(h) As used in this section, "Correctional administrator" means
the sheriff, probation officer, or director of the county department
of corrections.
(i) Notwithstanding any other law, the police department of a city
where an office is located to which persons on an electronic
monitoring program report may request the county correctional
administrator to provide information concerning those persons. This
information shall be limited to the name, address, date of birth,
offense committed by the home detainee, and if available, at the
discretion of the supervising agency and solely for investigatory
purposes, current and historical GPS coordinates of the home
detainee. A law enforcement department that does not have the primary
responsibility to supervise participants in the electronic
monitoring program that receives information pursuant to this
subdivision shall not use the information to conduct enforcement
actions based on administrative violations of the home detention
program. A law enforcement department that has knowledge that the
subject in a criminal investigation is a participant in an electronic
monitoring program shall make reasonable efforts to notify the
supervising agency prior to serving a warrant or taking any law
enforcement action against a participant in an electronic monitoring
program.
(j) It is the intent of the Legislature that home detention
programs established under this section maintain the highest public
confidence, credibility, and public safety. In the furtherance of
these standards, the following shall apply:
(1) The correctional administrator, with the approval of the board
of supervisors, may administer a home detention program pursuant to
written contracts with appropriate public or private agencies or
entities to provide specified program services. No public or private
agency or entity may operate a home detention program in any county
without a written contract with that county's correctional
administrator. However, this does not apply to the use of electronic
monitoring by the Department of Corrections and Rehabilitation. No
public or private agency or entity entering into a contract may
itself employ any person who is in the home detention program.
(2) Program acceptance shall not circumvent the normal booking
process for sentenced offenders. All home detention program
participants shall be supervised.
(3) (A) All privately operated home detention programs shall be
under the jurisdiction of, and subject to the terms and conditions of
the contract entered into with, the correctional administrator.
(B) Each contract shall include, but not be limited to, all of the
following:
(i) A provision whereby the private agency or entity agrees to
operate in compliance with any available standards promulgated by
state correctional agencies and bodies, including the Corrections
Standards Authority, and all statutory provisions and mandates, state
and county, as appropriate and applicable to the operation of home
detention programs and the supervision of sentenced offenders in a
home detention program.
(ii) A provision that clearly defines areas of respective
responsibility and liability of the county and the private agency or
entity.
(iii) A provision that requires the private agency or entity to
demonstrate evidence of financial responsibility, submitted and
approved by the board of
supervisors, in amounts and under conditions sufficient to fully
indemnify the county for reasonably foreseeable public liability,
including legal defense costs, that may arise from, or be proximately
caused by, acts or omissions of the contractor. The contract shall
provide for annual review by the correctional administrator to ensure
compliance with requirements set by the board of supervisors and for
adjustment of the financial responsibility requirements if warranted
by caseload changes or other factors.
(iv) A provision that requires the private agency or entity to
provide evidence of financial responsibility, such as certificates of
insurance or copies of insurance policies, prior to commencing any
operations pursuant to the contract or at any time requested by the
board of supervisors or correctional administrator.
(v) A provision that permits the correctional administrator to
immediately terminate the contract with a private agency or entity at
any time that the contractor fails to demonstrate evidence of
financial responsibility.
(C) All privately operated home detention programs shall comply
with all appropriate, applicable ordinances and regulations specified
in subdivision (a) of Section 1208.
(D) The board of supervisors, the correctional administrator, and
the designee of the correctional administrator shall comply with
Section 1090 of the Government Code in the consideration, making, and
execution of contracts pursuant to this section.
(E) The failure of the private agency or entity to comply with
statutory provisions and requirements or with the standards
established by the contract and with the correctional administrator
may be sufficient cause to terminate the contract.
(F) Upon the discovery that a private agency or entity with whom
there is a contract is not in compliance pursuant to this paragraph,
the correctional administrator shall give 60 days' notice to the
director of the private agency or entity that the contract may be
canceled if the specified deficiencies are not corrected.
(G) Shorter notice may be given or the contract may be canceled
without notice whenever a serious threat to public safety is present
because the private agency or entity has failed to comply with this
section.
(k) For purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified copies
of any of the following:
(1) A current liability insurance policy.
(2) A current errors and omissions insurance policy.
(3) A surety bond.
SEC. 4. Section 1203.018 of the Penal Code is amended to read:
1203.018. (a) Notwithstanding any other law, this section shall
only apply to inmates being held in lieu of bail and on no other
basis.
(b) Notwithstanding any other law, the board of supervisors of any
county may authorize the correctional administrator, as defined in
paragraph (1) of subdivision (k), to offer a program under which
inmates being held in lieu of bail in a county jail or other county
correctional facility may participate in an electronic monitoring
program if the conditions specified in subdivision (c) are met.
(c) (1) In order to qualify for participation in an electronic
monitoring program pursuant to this section, the inmate shall be an
inmate with no holds or outstanding warrants to whom one of the
following circumstances applies:
(A) The inmate has been held in custody for at least 30 calendar
days from the date of arraignment pending disposition of only
misdemeanor charges.
(B) The inmate has been held in custody pending disposition of
charges for at least 60 calendar days from the date of arraignment.
(C) The inmate is appropriate for the program based on a
determination by the correctional administrator that the inmate's
participation would be consistent with the public safety interests of
the community.
(2) All participants shall be subject to discretionary review for
eligibility and compliance by the correctional administrator
consistent with this section.
(d) The board of supervisors, after consulting with the sheriff
and district attorney, may prescribe reasonable rules and regulations
under which an electronic monitoring program pursuant to this
section may operate. As a condition of participation in the
electronic monitoring program, the participant shall give his or her
consent in writing to participate and shall agree in writing to
comply with the rules and regulations of the program, including, but
not limited to, all of the following:
(1) The participant shall remain within the interior premises of
his or her residence during the hours designated by the correctional
administrator.
(2) The participant shall admit any person or agent designated by
the correctional administrator into his or her residence at any time
for purposes of verifying the participant's compliance with the
conditions of his or her detention.
(3) The electronic monitoring may include global positioning
system devices or other supervising devices for the purpose of
helping to verify the participant's compliance with the rules and
regulations of the electronic monitoring program. The electronic
devices shall not be used to eavesdrop or record any conversation,
except a conversation between the participant and the person
supervising the participant to be used solely for the purposes of
voice identification.
(4) The correctional administrator in charge of the county
correctional facility from which the participant was released may,
without further order of the court, immediately retake the person
into custody if the electronic monitoring or supervising devices are
unable for any reason to properly perform their function at the
designated place of home detention, if the person fails to remain
within the place of home detention as stipulated in the agreement, if
the person willfully fails to pay fees to the provider of electronic
home detention services, as stipulated in the agreement, subsequent
to the written notification of the participant that the payment has
not been received and that return to custody may result, or if the
person for any other reason no longer meets the established criteria
under this section.
(5) A copy of the signed consent to participate and a copy of the
agreement to comply with the rules and regulations shall be provided
to the participant and a copy shall be retained by the correctional
administrator.
(e) The rules and regulations and administrative policy of the
program shall be reviewed on an annual basis by the county board of
supervisors and the correctional administrator. The rules and
regulations shall be given to every participant.
(f) Whenever the peace officer supervising a participant has
reasonable cause to believe that the participant is not complying
with the rules or conditions of the program, or that the electronic
monitoring devices are unable to function properly in the designated
place of confinement, the peace officer may, under general or
specific authorization of the correctional administrator, and without
a warrant of arrest, retake the person into custody.
(g) (1) Nothing in this section shall be construed to require the
correctional administrator to allow a person to participate in this
program if it appears from the record that the person has not
satisfactorily complied with reasonable rules and regulations while
in custody. A person shall be eligible for participation in an
electronic monitoring program only if the correctional administrator
concludes that the person meets the criteria for release established
under this section and that the person's participation is consistent
with any reasonable rules and regulations prescribed by the board of
supervisors or the administrative policy of the correctional
administrator.
(2) The correctional administrator, or his or her designee, shall
have discretionary authority consistent with this section to permit
program participation as an alternative to physical custody. All
persons approved by the correctional administrator to participate in
the electronic monitoring program pursuant to subdivision (c) who are
denied participation and all persons removed from program
participation shall be notified in writing of the specific reasons
for the denial or removal. The notice of denial or removal shall
include the participant's appeal rights, as established by program
administrative policy.
(h) The correctional administrator may permit electronic
monitoring program participants to seek and retain employment in the
community, attend psychological counseling sessions or educational or
vocational training classes, or seek medical and dental assistance.
(i) Willful failure of the program participant to return to the
place of home detention prior to the expiration of any period of time
during which he or she is authorized to be away from the place of
home detention pursuant to this section and unauthorized departures
from the place of home detention is punishable pursuant to Section
4532.
(j) The board of supervisors may prescribe a program
administrative fee to be paid by each electronic monitoring
participant.
(k) For purposes of this section, the following terms have the
following meanings:
(1) "Correctional administrator" means the sheriff, probation
officer, or director of the county department of corrections.
(2) "Electronic monitoring program" includes, but is not limited
to, home detention programs, work furlough programs, and work release
programs.
( l ) Notwithstanding any other law, upon request of a
local law enforcement agency with jurisdiction over the location
where a participant in an electronic monitoring program is placed,
the correctional administrator shall provide the following
information regarding participants in the electronic monitoring
program:
(1) The participant's name, address, and date of birth.
(2) The offense or offenses alleged to have been committed by the
participant.
(3) The period of time the participant will be placed on home
detention.
(4) Whether the participant successfully completed the prescribed
period of home detention or was returned to a county correctional
facility, and if the person was returned to a county correctional
facility, the reason for the return.
(5) The gender and ethnicity of the participant.
(m) Notwithstanding any other law, upon request of a local law
enforcement agency with jurisdiction over the location where a
participant in an electronic monitoring program is placed, the
correctional administrator may, in his or her discretion and solely
for investigatory purposes, provide current and historical GPS
coordinates, if available.
(n) A law enforcement agency that does not have the primary
responsibility to supervise participants in the electronic monitoring
program that receives information pursuant to subdivision (l) shall
not use the information to conduct enforcement actions based on
administrative violations of the home detention program. An agency
that has knowledge that the subject in a criminal investigation is a
participant in an electronic monitoring program shall make reasonable
efforts to notify the supervising agency prior to serving a warrant
or taking any law enforcement action against a participant in an
electronic monitoring program.
(o) It is the intent of the Legislature that electronic monitoring
programs established under this section maintain the highest public
confidence, credibility, and public safety. In the furtherance of
these standards, the following shall apply:
(1) The correctional administrator, with the approval of the board
of supervisors, may administer an electronic monitoring program as
provided in this section pursuant to written contracts with
appropriate public or private agencies or entities to provide
specified program services. A public or private agency or entity
shall not operate a home detention program pursuant to this section
in any county without a written contract with that county's
correctional administrator. A public or private agency or entity
entering into a contract pursuant to this subdivision shall not
itself employ any person who is in the electronic monitoring program.
(2) Program participants shall undergo the normal booking process
for arrestees entering the jail. All electronic monitoring program
participants shall be supervised.
(3) (A) All privately operated electronic monitoring programs
shall be under the jurisdiction of, and subject to the terms and
conditions of the contract entered into with, the correctional
administrator.
(B) Each contract specified in subparagraph (A) shall include, but
not be limited to, all of the following:
(i) A provision whereby the private agency or entity agrees to
operate in compliance with any available standards and all state and
county laws applicable to the operation of electronic monitoring
programs and the supervision of offenders in an electronic monitoring
program.
(ii) A provision that clearly defines areas of respective
responsibility and liability of the county and the private agency or
entity.
(iii) A provision that requires the private agency or entity to
demonstrate evidence of financial responsibility, submitted to and
approved by the board of supervisors, in amounts and under conditions
sufficient to fully indemnify the county for reasonably foreseeable
public liability, including legal defense costs that may arise from,
or be proximately caused by, acts or omissions of the contractor.
(iv) A provision that requires the private agency or entity to
provide evidence of financial responsibility, such as certificates of
insurance or copies of insurance policies, prior to commencing any
operations pursuant to the contract or at any time requested by the
board of supervisors or correctional administrator.
(v) A provision that requires an annual review by the correctional
administrator to ensure compliance with requirements set by the
board of supervisors and for adjustment of the financial
responsibility requirements if warranted by caseload changes or other
factors.
(vi) A provision that permits the correctional administrator to
immediately terminate the contract with a private agency or entity at
any time that the contractor fails to demonstrate evidence of
financial responsibility.
(C) All privately operated electronic monitoring programs shall
comply with all applicable ordinances and regulations specified in
subdivision (a) of Section 1208.
(D) The board of supervisors, the correctional administrator, and
the designee of the correctional administrator shall comply with
Section 1090 of the Government Code in the consideration, making, and
execution of contracts pursuant to this section.
(E) The failure of the private agency or entity to comply with
state or county laws or with the standards established by the
contract with the correctional administrator shall constitute cause
to terminate the contract.
(F) Upon the discovery that a private agency or entity with which
there is a contract is not in compliance with this paragraph, the
correctional administrator shall give 60 days' notice to the director
of the private agency or entity that the contract may be canceled if
the specified deficiencies are not corrected.
(G) Shorter notice may be given or the contract may be canceled
without notice whenever a serious threat to public safety is present
because the private agency or entity has failed to comply with this
section.
(H) For purposes of this section, "evidence of financial
responsibility" may include, but is not limited to, certified copies
of any of the following:
(i) A current liability insurance policy.
(ii) A current errors and omissions insurance policy.
(iii) A surety bond.
SEC. 5. Section 2900.5 of the Penal Code is amended to read:
2900.5. (a) In all felony and misdemeanor convictions, either by
plea or by verdict, when the defendant has been in custody,
including, but not limited to, any time spent in a jail, camp, work
furlough facility, halfway house, rehabilitation facility, hospital,
prison, juvenile detention facility, or similar residential
institution, all days of custody of the defendant, including days
served as a condition of probation in compliance with a court order,
credited to the period of confinement pursuant to Section 4019, and
days served in home detention pursuant to Section 1203.016 or
1203.018, shall be credited upon his or her term of imprisonment, or
credited to any fine, including, but not limited to, base fines, on a
proportional basis, that may be imposed, at the rate of not less
than thirty dollars ($30) per day, or more, in the discretion of the
court imposing the sentence. If the total number of days in custody
exceeds the number of days of the term of imprisonment to be imposed,
the entire term of imprisonment shall be deemed to have been served.
In any case where the court has imposed both a prison or jail term
of imprisonment and a fine, any days to be credited to the defendant
shall first be applied to the term of imprisonment imposed, and
thereafter the remaining days, if any, shall be applied to the fine,
including, but not limited to, base fines, on a proportional basis.
(b) For the purposes of this section, credit shall be given only
where the custody to be credited is attributable to proceedings
related to the same conduct for which the defendant has been
convicted. Credit shall be given only once for a single period of
custody attributable to multiple offenses for which a consecutive
sentence is imposed.
(c) For the purposes of this section, "term of imprisonment"
includes any period of imprisonment imposed as a condition of
probation or otherwise ordered by a court in imposing or suspending
the imposition of any sentence, and also includes any term of
imprisonment, including any period of imprisonment prior to release
on parole and any period of imprisonment and parole, prior to
discharge, whether established or fixed by statute, by any court, or
by any duly authorized administrative agency.
(d) It is the duty of the court imposing the sentence to determine
the date or dates of any admission to, and release from, custody
prior to sentencing and the total number of days to be credited
pursuant to this section. The total number of days to be credited
shall be contained in the abstract of judgment provided for in
Section 1213.
(e) It is the duty of any agency to which a person is committed to
apply the credit provided for in this section for the period between
the date of sentencing and the date the person is delivered to the
agency.
(f) If a defendant serves time in a camp, work furlough facility,
halfway house, rehabilitation facility, hospital, juvenile detention
facility, similar residential facility, or home detention program
pursuant to Section 1203.016, 1203.017, or 1203.018, in lieu of
imprisonment in a county jail, the time spent in these facilities or
programs shall qualify as mandatory time in jail.
(g) Notwithstanding any other provision of this code as it
pertains to the sentencing of convicted offenders, this section does
not authorize the sentencing of convicted offenders to any of the
facilities or programs mentioned herein.
SEC. 6. Section 4019 of the Penal Code is amended to read:
4019. (a) The provisions of this section shall apply in all of
the following cases:
(1) When a prisoner is confined in or committed to a county jail,
industrial farm, or road camp, or any city jail, industrial farm, or
road camp, including all days of custody from the date of arrest to
the date on which the serving of the sentence commences, under a
judgment of imprisonment, or a fine and imprisonment until the fine
is paid in a criminal action or proceeding.
(2) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp as a condition of probation after suspension of
imposition of a sentence or suspension of execution of sentence, in a
criminal action or proceeding.
(3) When a prisoner is confined in or committed to the county
jail, industrial farm, or road camp or any city jail, industrial
farm, or road camp for a definite period of time for contempt
pursuant to a proceeding, other than a criminal action or proceeding.
(4) When a prisoner is confined in a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp
following arrest and prior to the imposition of sentence for a felony
conviction.
(5) When a prisoner is confined in a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp as part
of custodial sanction imposed following a violation of postrelease
community supervision or parole.
(6) When a prisoner is confined in a county jail, industrial farm,
or road camp, or a city jail, industrial farm, or road camp as a
result of a sentence imposed pursuant to subdivision (h) of Section
1170.
(7) When a prisoner participates in a program pursuant to Section
1203.016 or Section 4024.2. Except for prisoners who have already
been deemed eligible to receive credits for participation in a
program pursuant to Section 1203.016 prior to January 1, 2015, this
paragraph shall apply prospectively.
(b) Subject to the provisions of subdivision (d), for each
four-day period in which a prisoner is confined in or committed to a
facility as specified in this section, one day shall be deducted from
his or her period of confinement unless it appears by the record
that the prisoner has refused to satisfactorily perform labor as
assigned by the sheriff, chief of police, or superintendent of an
industrial farm or road camp.
(c) For each four-day period in which a prisoner is confined in or
committed to a facility as specified in this section, one day shall
be deducted from his or her period of confinement unless it appears
by the record that the prisoner has not satisfactorily complied with
the reasonable rules and regulations established by the sheriff,
chief of police, or superintendent of an industrial farm or road
camp.
(d) This section does not require the sheriff, chief of police, or
superintendent of an industrial farm or road camp to assign labor to
a prisoner if it appears from the record that the prisoner has
refused to satisfactorily perform labor as assigned or that the
prisoner has not satisfactorily complied with the reasonable rules
and regulations of the sheriff, chief of police, or superintendent of
any industrial farm or road camp.
(e) A deduction shall not be made under this section unless the
person is committed for a period of four days or longer.
(f) It is the intent of the Legislature that if all days are
earned under this section, a term of four days will be deemed to have
been served for every two days spent in actual custody.
(g) The changes in this section as enacted by the act that added
this subdivision shall apply to prisoners who are confined to a
county jail, city jail, industrial farm, or road camp for a crime
committed on or after the effective date of that act.
(h) The changes to this section enacted by the act that added this
subdivision shall apply prospectively and shall apply to prisoners
who are confined to a county jail, city jail, industrial farm, or
road camp for a crime committed on or after October 1, 2011. Any days
earned by a prisoner prior to October 1, 2011, shall be calculated
at the rate required by the prior law.
(i) This section shall not apply, and no credits may be earned,
for periods of flash incarceration imposed pursuant to Section
3000.08 or 3454.
SEC. 7. 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.