Amended
IN
Senate
May 20, 2021 |
Amended
IN
Senate
April 15, 2021 |
Amended
IN
Senate
March 25, 2021 |
Introduced by Senator Wiener (Coauthors: Senators Kamlager and Newman) (Coauthors: Assembly Members Low and Quirk) |
February 17, 2021 |
The bill would also provide for the dismissal and sealing of pending and prior convictions
for offenses that would be made lawful by the passage of this bill, as specified. The bill would require the Department of Justice to identify those records and provide them to local jurisdictions to initiate the required proceedings.
(a)A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty under Section 11350.1 or 11402 had those sections been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal in accordance with those sections.
(b)Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not
satisfy the criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.
(1)In exercising its discretion, the court may consider, but shall not be limited to evidence provided for in subdivision (b) of Section 1170.18 of the Penal Code.
(2)As used in this section, “unreasonable risk of danger to public safety” has the same meaning as provided in subdivision (c) of Section 1170.18 of the Penal Code.
(c)A person who is serving a sentence and is resentenced pursuant to subdivision
(b) shall be given credit for any time already served and shall be subject to supervision for one year following completion of their time in custody or shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision. In that case, the person is subject to parole supervision under Section 3000.08 of the Penal Code or postrelease community supervision under subdivision (a) of Section 3451 of the Penal Code by the designated agency and the jurisdiction of the court in the county in which the offender is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke supervision and impose a term of custody.
(d)Under no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
(e)A person who has completed their sentence for a conviction under this article or Chapter 6.5 (commencing with Section 11400), whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under Section 11350.1 or 11402 had those sections been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is now legally invalid.
(f)The court shall presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as established under Sections 11350.1 and 11402.
(g)Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (e).
(h)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(i)Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(j)Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of Section 11350.1 or 11402.
(k)A resentencing hearing ordered under this section shall constitute a “postconviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law).
(l)The provisions of this section shall apply equally to juvenile delinquency adjudications and dispositions under Section 602 of the
Welfare and Institutions Code if the juvenile would not have been guilty of an offense under Section 11350.1 or 11402.
(m)The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.
(a)On or before July 1, 2022, the Department of Justice shall review the records in the state summary criminal history information database and shall identify past convictions that are potentially eligible for recall or dismissal of sentence or dismissal and sealing, pursuant to Section 11356.8. The department shall notify the prosecution of all cases in their jurisdiction that are eligible for recall or dismissal of sentence or dismissal and sealing.
(b)The prosecution shall have until July 1, 2023, to review all cases and determine whether to challenge the recall or dismissal of sentence or dismissal and sealing.
(c)(1)The prosecution may challenge the resentencing of a person pursuant to this section when the person does not meet the criteria established in Section 11356.8 or presents an unreasonable risk to public safety.
(2)The prosecution may challenge the dismissal and sealing of a person pursuant to this section who has completed their sentence for a conviction when the person does not meet the criteria established in Section 11356.8.
(3)On or before July 1, 2023, the prosecution shall inform the court and the public defender’s office in their county when they are challenging a particular recall or dismissal of sentence or dismissal and sealing. The prosecution shall inform the court when they are not challenging a particular recall or dismissal of
sentence or dismissal and sealing.
(4)The public defender’s office, upon receiving notice from the prosecution pursuant to paragraph (3), shall make a reasonable effort to notify the person whose resentencing or dismissal is being challenged.
(d)If the prosecution does not challenge the recall or dismissal of sentence or dismissal and sealing by July 1, 2023, the court shall reduce or dismiss the conviction pursuant to Section 11356.8.
(e)The court shall notify the department of the recall or dismissal of sentence or dismissal and sealing and the department shall modify the state summary criminal history information database accordingly.
(f)The
department shall post general information on its internet website about the recall or dismissal of sentences or dismissal and sealing authorized in this section.
(g)It is the intent of the Legislature that persons who are currently serving a sentence or who proactively petition for a recall or dismissal of sentence or dismissal and sealing pursuant to Section 11356.8 be prioritized for review.
(a)A person currently serving a sentence for a conviction, whether by trial or by open or negotiated plea, who would not have been guilty under Section 11377.1, had those sections been in effect at the time of the offense may petition for a recall or dismissal of sentence before the trial court that entered the judgment of conviction in the case to request resentencing or dismissal in accordance with those sections.
(b)Upon receiving a petition under subdivision (a), the court shall presume the petitioner satisfies the criteria in subdivision (a) unless the party opposing the petition proves by clear and convincing evidence that the petitioner does not satisfy the
criteria. If the petitioner satisfies the criteria in subdivision (a), the court shall grant the petition to recall the sentence or dismiss the sentence because it is legally invalid unless the court determines that granting the petition would pose an unreasonable risk of danger to public safety.
(1)In exercising its discretion, the court may consider, but shall not be limited to evidence provided for in subdivision (b) of Section 1170.18 of the Penal Code.
(2)As used in this section, “unreasonable risk of danger to public safety” has the same meaning as provided in subdivision (c) of Section 1170.18 of the Penal Code.
(c)A person who is serving a sentence and is resentenced pursuant to subdivision (b) shall be
given credit for any time already served and shall be subject to supervision for one year following completion of their time in custody or shall be subject to whatever supervision time they would have otherwise been subject to after release, whichever is shorter, unless the court, in its discretion, as part of its resentencing order, releases the person from supervision. In that case, the person is subject to parole supervision under Section 3000.08 of the Penal Code or postrelease community supervision under subdivision (a) of Section 3451 of the Penal Code by the designated agency and the jurisdiction of the court in the county in which the offender is released or resides, or in which an alleged violation of supervision has occurred, for the purpose of hearing petitions to revoke supervision and impose a term of custody.
(d)Under
no circumstances may resentencing under this section result in the imposition of a term longer than the original sentence, or the reinstatement of charges dismissed pursuant to a negotiated plea agreement.
(e)A person who has completed their sentence for a conviction under this article or former Article 7 (commencing with Section 11390), whether by trial or open or negotiated plea, who would not have been guilty of an offense or who would have been guilty of a lesser offense under Section 11377.1, had those sections been in effect at the time of the offense, may file an application before the trial court that entered the judgment of conviction in their case to have the conviction dismissed and sealed because the prior conviction is now legally invalid.
(f)The court shall
presume the petitioner satisfies the criteria in subdivision (e) unless the party opposing the application proves by clear and convincing evidence that the petitioner does not satisfy the criteria in subdivision (e). Once the applicant satisfies the criteria in subdivision (e), the court shall redesignate the conviction as a misdemeanor or infraction or dismiss and seal the conviction as legally invalid as now established under Section 11377.1.
(g)Unless requested by the applicant, no hearing is necessary to grant or deny an application filed under subdivision (e).
(h)If the court that originally sentenced the petitioner is not available, the presiding judge shall designate another judge to rule on the petition or application.
(i)Nothing in this section is intended to diminish or abrogate any rights or remedies otherwise available to the petitioner or applicant.
(j)Nothing in this and related sections is intended to diminish or abrogate the finality of judgments in any case not falling within the purview of Section 11377.1.
(k)A resentencing hearing ordered under this section shall
constitute a “postconviction release proceeding” under paragraph (7) of subdivision (b) of Section 28 of Article I of the California Constitution (Marsy’s Law).
(l)The provisions of this section shall apply equally to juvenile delinquency adjudications and dispositions under Section 602 of the Welfare and Institutions Code if the juvenile would not have been guilty of an offense under Section 11377.1.
(m)The Judicial Council shall promulgate and make available all necessary forms to enable the filing of the petitions and applications provided in this section.
(a)On or before July 1, 2022, the Department of Justice shall review the records in the state summary criminal history information database and shall identify past convictions that are potentially eligible for recall or dismissal of sentence or dismissal and sealing, pursuant to Section 11382.8. The department shall notify the prosecution of all cases in their jurisdiction that are eligible for recall or dismissal of sentence or dismissal and sealing.
(b)The prosecution shall have until July 1, 2023, to review all cases and determine whether to challenge the recall or dismissal of sentence or dismissal and sealing.
(c)(1)The prosecution may challenge the resentencing of a person pursuant to this section when the person does not meet the criteria established in Section 11382.8 or presents an unreasonable risk to public safety.
(2)The prosecution may challenge the dismissal and sealing of a person pursuant to this section who has completed their sentence for a conviction when the person does not meet the criteria established in Section 11382.8.
(3)On or before July 1, 2023, the prosecution shall inform the court and the public defender’s office in their county when they are challenging a particular recall or dismissal of sentence or dismissal and sealing. The prosecution shall inform the court when they are not challenging a particular recall or dismissal of sentence or
dismissal and sealing.
(4)The public defender’s office, upon receiving notice from the prosecution pursuant to paragraph (3), shall make a reasonable effort to notify the person whose resentencing or dismissal is being challenged.
(d)If the prosecution does not challenge the recall or dismissal of sentence or dismissal and sealing by July 1, 2023, the court shall reduce or dismiss the conviction pursuant to Section 11382.8.
(e)The court shall notify the department of the recall or dismissal of sentence or dismissal and sealing and the department shall modify the state summary criminal history information database accordingly.
(f)The department shall post
general information on its internet website about the recall or dismissal of sentences or dismissal and sealing authorized in this section.
(g)It is the intent of the Legislature that persons who are currently serving a sentence or who proactively petition for a recall or dismissal of sentence or dismissal and sealing pursuant to Section 11382.8 be prioritized for review.