California Senate Bill SB1363 Amended / Bill

 BILL NUMBER: SB 1363AMENDED BILL TEXT AMENDED IN SENATE MARCH 25, 2014 INTRODUCED BY Senator Hancock FEBRUARY 21, 2014 An act  to amend Section 3041 of the Penal Code,  relating to sentencing. LEGISLATIVE COUNSEL'S DIGEST SB 1363, as amended, Hancock.  Sentencing.   Sentencing: parole.   Existing law requires the Board of Parole Hearings to meet with each inmate during the 6th year prior to the inmate's minimum eligible parole release date for the purposes of reviewing and documenting the inmate's activities and conduct pertinent to both parole eligibility and to the granting or withholding of postconviction credit. During this consultation, the board is required to provide the inmate with information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior. Existing law requires the board to issue its positive and negative findings and recommendations to the inmate in writing, within 30 days following the consultation.   This bill would require the board to establish criteria for the setting of the base term of incarceration. The criteria shall include, but not be limited to, consideration of the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime. The bill would require the board to establish criteria for determining whether an inmate is suitable for parole, and would require the board to establish criteria for an inmate's adjusted base term of incarceration, as adjusted by applicable enhancements or credits. The bill would require an inmate who is found suitable for parole to be paroled regardless of whether the base term of incarceration, as adjusted, has expired, subject to certain minimum term provisions and specified review provisions.   Existing law requires that one year prior to the inmate's minimum eligible parole release date a panel of 2 or more commissioners or deputy commissioners acting for the board meet with the inmate and, subject to exception, set a parole release date per specified procedures.   The bill would require the panel meeting with the inmate to establish the inmate's base term of incarceration by applying the applicable factors set out in the board's regulations and guidelines. The bill would require the board to adopt prior determinations and findings of the sentencing court in establishing the base term of incarceration. The bill would require that the base term of incarceration be set in a manner that will, to the greatest extent possible, provide proportionate and uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, that will comply with the sentencing rules that the Judicial Council may issue, and with any sentencing information relevant to the setting of the base term of incarceration. The bill would require the board to also establish the inmate's adjusted base term of incarceration by applying any adjustments to the base term of incarceration based on the inmate's incarceration history. The bill provides that at the meeting one year prior to the inmate's minimum eligible parole release date the board will normally set a release date at the inmate's initial parole hearing, but is not required to set a parole date in every case.   Existing law requires the board to separately state reasons for its decision to grant or deny parole.   The bill would require the board's stated reasons to demonstrate, on the record, an individualized consideration of all relevant factors. The bill would require that in the case of an inmate who has served beyond his or her base term of incarceration, as adjusted, a decision by the board to deny parole be supported by substantial evidence and with respect to the entire record.   The bill would require the board to collect and maintain statistics that show, annually, the number of inmates in state prison who are serving a term in excess of their base term of incarceration, as adjusted by applicable enhancements or credits, and the percentage of all cases decided each year in which the board, in a final decision, by a panel or the board sitting en banc, has declined to find an inmate suitable for parole, despite the fact that the inmate has served a sentence beyond the base term of incarceration, as adjusted by applicable enhancements or credits. The bill would require the board to report the data to the Legislature on or before January 1, 2016, and annually thereafter.   Existing law generally provides that felons are incarcerated in county jails, and are subject to county supervision upon release, excepting however, felons convicted of violent or serious felonies, or of felonies requiring registration as a sex offender, who are incarcerated in state prison and are generally subject to supervision by the Department of Corrections and Rehabilitation upon release.   This bill would express the intent of the Legislature to enact legislation relating to sentencing and parole.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   Section 3041 of the   Penal Code   is amended to read:  3041. (a)  The Board of Parole Hearings shall establish criteria for the setting of the base term of incarceration. The criteria shall include, but not be limited to, consideration of the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime.   (b) The board shall establish criteria for determining whether an inmate is suitable for parole. The board shall establish criteria for an inmate's base term of incarceration, as adjusted by applicable enhancements or credits, that shall be relevant but not dispositive of whether an inmate is suitable for parole.   (c) The board has the discretion to determine the suitability for parole of any inmate who is eligible for parole, giving paramount consideration to public safety. An inmate who is found suitable for parole shall be paroled regardless of whether the base term of incarceration, as adjusted, has expired, subject to the minimum term provisions in Section 3046, as applicable, and to the review provisions in subdivision (c), and Sections 3041.1 and 3041.2, and subdivision (b) of Section 8 of Article V of the California Constitution. This section does not affect the Governor's independent authority to review, under Sections 3041.1 and 3041.2 and under subdivision (b) of Section 8 of Article V of the California Constitution, a parole decision by the board.   (d)    In the case of any inmate sentenced pursuant to any law, other than Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, the Board of Parole Hearings shall meet with each inmate during the sixth year prior to the inmate's minimum eligible parole release date for the purposes of reviewing and documenting the inmate's activities and conduct pertinent to both parole eligibility and to the granting or withholding of postconviction credit. During this consultation, the board shall provide the inmate information about the parole hearing process, legal factors relevant to his or her suitability or unsuitability for parole, and individualized recommendations for the inmate regarding his or her work assignments, rehabilitative programs, and institutional behavior. Within 30 days following the consultation, the board shall issue its positive and negative findings and recommendations to the inmate in writing.  One   (e)     One  year prior to the inmate' s minimum eligible parole release date a panel of two or more commissioners or deputy commissioners shall again meet with the inmate and shall  normally set a parole release date as provided in Section 3041.5.   in every case establish the inmate's base term of incarceration by applying the applicable factors set out in the board's regulations and guidelines. The board shall adopt prior determinations and findings of the sentencing court in establishing the base term of incarceration. The base term of incarceration shall be set in a manner that will, to the greatest extent possible, provide proportionate and uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue, and with any sentencing information relevant to the setting of the base term of incarceration. The board shall also establish the inmate's adjusted base term of incarceration by applying any adjustments to the base term of incarceration based on the inmate   's incarceration history. The board shall   normally set a release date at the inmate's initial parole hearing, as provided in Section 3014.5, but is not required to set a parole date in every case.   No   (f)    No  more than one member of the panel shall be a deputy commissioner. In the event of a tie vote, the matter shall be referred for an en banc review of the record that was before the panel that rendered the tie vote. Upon en banc review, the board shall vote to either grant or deny parole and render a statement of decision. The en banc review shall be conducted pursuant to subdivision  (e). The release date shall be set in a manner that will provide uniform terms for offenses of similar gravity and magnitude with respect to their threat to the public, and that will comply with the sentencing rules that the Judicial Council may issue and any sentencing information relevant to the setting of parole release dates. The board shall establish criteria for the setting of parole release dates and in doing so shall consider the number of victims of the crime for which the inmate was sentenced and other factors in mitigation or aggravation of the crime. At   (l).   (g)     At  least one commissioner of the panel shall have been present at the last preceding meeting, unless it is not feasible to do so or where the last preceding meeting was the initial meeting. Any person on the hearing panel may request review of any decision regarding parole for an en banc hearing by the board. In case of a review, a majority vote in favor of parole by the board members participating in an en banc review is required to grant parole to any inmate.  (b)   (h)  The panel or the board, sitting en banc, shall set a release date unless it determines that the gravity of the current convicted offense or offenses, or the timing and gravity of current or past convicted offense or offenses, is such that consideration of the public safety requires a  more lengthy  period of incarceration  beyond the base term  for this individual,  as adjusted,  and that a parole date, therefore, cannot be fixed at this meeting.  After   (i)     After   the effective date of this subdivision   July 31, 2001  , any decision of the parole panel finding an inmate suitable for parole shall become final within 120 days of the date of the hearing. During that period, the board may review the panel's decision. The panel's decision shall become final pursuant to this subdivision unless the board finds that the panel made an error of law, or that the panel's decision was based on an error of fact, or that new information should be presented to the board, any of which when corrected or considered by the board has a substantial likelihood of resulting in a substantially different decision upon a rehearing. In making this determination, the board shall consult with the commissioners who conducted the parole consideration hearing.  No   A  decision of the parole panel shall  not  be disapproved and referred for rehearing  by the board  except by a majority vote of the  board   commissioners  , sitting en banc, following a public meeting.  (c)   (j)  For the purpose of reviewing the suitability for parole of those inmates eligible for parole under prior law at a date earlier than that calculated under Section 1170.2, the board shall appoint panels of at least two persons to meet annually with each inmate until the time the person is released pursuant to proceedings or reaches the expiration of his or her term as calculated under Section 1170.2.  (d)   (k)  It is the intent of the Legislature that, during times when there is no backlog of inmates awaiting parole hearings, life parole consideration hearings, or life rescission hearings, hearings will be conducted by a panel of three or more members, the majority of whom shall be commissioners. The board shall report monthly on the number of cases where an inmate has not received a completed initial or subsequent parole consideration hearing within 30 days of the hearing date required by subdivision (a) of Section 3041.5 or paragraph (2) of subdivision (b) of Section 3041.5, unless the inmate has waived the right to those timeframes. That report shall be considered the backlog of cases for purposes of this section, and shall include information on the progress toward eliminating the backlog, and on the number of inmates who have waived their right to the above timeframes. The report shall be made public at a regularly scheduled meeting of the board and a written report shall be made available to the public and transmitted to the Legislature quarterly.  (e)   (l)  For purposes of this section, an en banc review by the board means a review conducted by a majority of commissioners holding office on the date the matter is heard by the board. An en banc review shall be conducted in compliance with the following: (1) The commissioners conducting the review shall consider the entire record of the hearing that resulted in the tie vote. (2) The review shall be limited to the record of the hearing. The record shall consist of the transcript or audiotape of the hearing, written or electronically recorded statements actually considered by the panel that produced the tie vote, and any other material actually considered by the panel. New evidence or comments shall not be considered in the en banc proceeding. (3) The board shall separately state reasons for its decision to grant or deny parole.  The board's stated reasons shall demonstrate, on the record, an individualized consideration of all relevant factors.   In the case of an inmate who has served beyond his or her base term of incarceration, as adjusted, a decision by the board to   deny parole shall be supported by substantial evidence and with respect to the entire record.  (4) A commissioner who was involved in the tie vote shall be recused from consideration of the matter in the en banc review.  (m) (1) The board shall collect and maintain statistics that show, annually, the number of inmates in state prison who are serving a term in excess of their base term of incarceration, as adjusted by applicable enhancements or credits, and the percentage of all cases decided each year in which the board, in a final decision, by a panel or the board sitting en banc, has declined to find an inmate suitable for parole, despite the fact that the inmate has served a sentence beyond the base term of incarceration, as adjusted by applicable enhancements or credits.   (2) The board shall submit a report to the Legislature detailing the information collected pursuant to paragraph (1) and shall submit the report on or before January 1, 2016, and annually thereafter, notwithstanding Section 10231.5 of the Government Code.   (3) The report required by this subdivision shall be submitted pursuant to Section 9795 of the Government Code.   SECTION 1.   It is the intent of the Legislature to enact legislation relating to sentencing and parole.