Assembly Bill No. 1539
CHAPTER 740
An act to amend Section 1170 of the Penal Code, relating to sentencing.
[Approved by Governor October 14, 2007. Filed with
Secretary of State October 14, 2007.]

legislative counsel’s digest

AB 1539, Krekorian. Sentencing.
Under existing law, a state prisoner who is diagnosed with a disease that
would produce death within 6 months and whose release is deemed not to
threaten the public safety may have his or her sentence recalled and be
resentenced. Existing law additionally sets forth grounds under which the
court has discretion to find that a prisoner is eligible for resentence or recall.
This bill would extend those provisions for early release to prisoners who
are permanently medically incapacitated and whose release is deemed not
to threaten public safety. This bill would also oblige a physician employed
by the Department of Corrections and Rehabilitation who determines that
a prisoner has 6 months or less to live to inform the appropriate chief medical
officer of that fact, and, if he or she concurs, would oblige the chief medical
officer to inform the warden of that fact. This bill would also require the
warden or the warden’s representative to inform a prisoner given that
prognosis of the recall and resentencing procedures, and to arrange for the
prisoner’s designee to be informed of the prisoner’s medical condition and
prognosis, and of the procedures for recall and resentencing. This bill would
require the warden or the warden’s representative to contact a mentally unfit
inmate’s emergency contact and provide the contact with this information.
This bill would also direct the warden or the warden’s representative to
keep the prisoner and the prisoner’s designee apprised of the prisoner’s
medical condition and recall and resentencing proceedings. This bill would
also provide that when a prisoner or his or her designee initiates recall and
resentencing procedures, the chief medical officer and the warden or the
warden’s representative, if they find that the prisoner has 6 months or less
to live, shall, within 48 hours of their finding, inform the prisoner or his or
her designee of the recall and resentencing procedures. This bill would also
require release of a prisoner who is resentenced within 48 hours of receipt
of the court’s order, unless the prisoner agrees to a longer time period, and
would require that the prisoner be given his or her medical records, state
identification, medications, and property at the time of release. Finally, this
bill would require the secretary to issue a directive to Department of
Corrections and Rehabilitation staff explaining recall and resentencing
procedures.

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The people of the State of California do enact as follows:
SECTION 1. Section 1170 of the Penal Code, as amended by Section
2 of Chapter 3 of the Statutes of 2007, 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. 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

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Ch. 740

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)  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 resentence 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.
(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 subparagraph (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.

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(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.

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(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)  Any sentence imposed under this article shall be subject to the
provisions of Sections 3000 and 3057 and any other applicable provisions
of law.
(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)  This section shall remain in effect only until January 1, 2009, 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 added by Section 3 of Chapter
3 of the Statutes of 2007, 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

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—6—

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. 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.

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Ch. 740

(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)  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 resentence 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.
(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

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Ch. 740

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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.

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Ch. 740

(f)  Any sentence imposed under this article shall be subject to the
provisions of Sections 3000 and 3057 and any other applicable provisions
of law.
(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)  This section shall become operative on January 1, 2009.

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