§ 1172.2. — 1172.2. (Amended by Stats. 2023, Ch. 131, Sec. 158.)

California § 1172.2.

• Jurisdiction: California
• Code PEN: Penal Code - PEN
• Title: 7.
• Part 2.: TITLE 7. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT
• Ch. 4.5.: CHAPTER 4.5. Trial Court Sentencing
• Art. 1.5.: ARTICLE 1.5. Recall and Resentencing

Text

(a)
Notwithstanding any other law and consistent with paragraph (1) of subdivision (a) of Section 1170, if the statewide chief medical executive, in consultation with other clinical executives, as needed, determines that an incarcerated person satisfies the medical criteria set forth in subdivision (b), the department shall recommend to the court that the incarcerated person’s sentence be recalled.
(b)
There shall be a presumption favoring recall and resentencing under this section if the court finds that the facts described in paragraph (1) or (2) exist, which may only be overcome if a court finds the defendant is an unreasonable risk of danger to public safety, as defined in subdivision (c) of Section 1170.18, based on the incarcerated person’s current physical
and mental condition.
(1)
The incarcerated person has a serious and advanced illness with an end-of-life trajectory. Examples include, but are not limited to, metastatic solid-tumor cancer, amyotrophic lateral sclerosis (ALS), end-stage organ disease, and advanced end-stage dementia.
(2)
The incarcerated person is permanently medically incapacitated with a medical condition or functional impairment that renders them permanently unable to complete basic activities of daily living, including, but not limited to, bathing, eating, dressing, toileting, transferring, and ambulation, or has progressive end-stage dementia and that incapacitation did not exist at the time of the original sentencing.
(c)
Within 10 days of receipt of a positive recommendation by the department, the court shall hold a hearing to consider whether
the incarcerated person’s sentence should be recalled.
(d)
Any physician employed by the department, or their designee, who determines that an incarcerated person has a serious and advanced illness with an end-of-life trajectory or has a medical condition or functional impairment that renders them permanently medically incapacitated shall notify the chief medical executive of the prognosis. If the chief medical executive concurs with the prognosis, they shall notify the warden. Within 48 hours of receiving notification, the warden or the warden’s representative shall notify the incarcerated person of the recall and resentencing procedures and shall arrange for the incarcerated person to designate a family member or other outside agent to be notified as to the incarcerated person’s medical condition and prognosis and as to the recall and resentencing procedures. If the incarcerated person is deemed mentally unfit, the warden or the warden’s
representative shall contact the incarcerated person’s emergency contact and provide the information described in subdivision (b).
(e)
The department shall refer the matter to the court for recall and resentencing within 45 days of the primary physician’s, or their designee’s, diagnosis and referral to the chief medical executive.
(f)
The warden or the warden’s representative shall provide the incarcerated person and their family member, agent, or emergency contact, as described in subdivision (d), updated information throughout the recall and resentencing process with regard to the incarcerated person’s medical condition and the status of the incarcerated person’s recall and resentencing proceedings.
(g)
Notwithstanding any other provisions of this section, the incarcerated person or their family member or designee
may independently request consideration for recall and resentencing by contacting the chief medical executive at the prison. Upon receipt of the request, the chief medical executive and the warden or the warden’s representative shall follow the procedures described in subdivision (d). If the department determines that the incarcerated person satisfies the criteria set forth in subdivision (b), the department shall recommend to the court that the incarcerated person’s sentence be recalled. The department shall submit a recommendation for release within 45 days.
(h)
Any recommendation for recall submitted to the court by the department shall include one or more medical evaluations, a postrelease plan, and findings pursuant to subdivision (b).
(i)
If possible, the matter shall be heard before the same judge of the court who sentenced the incarcerated person.
(j)
The referring physician or their designees from the department shall be available to the court or defense counsel as necessary throughout the recall and resentencing proceedings.
(k)
Upon recommendation to the court for recall of sentence, the incarcerated person shall have the right to counsel and, if indigent, the right to court-appointed counsel.
(
l
)
If the court grants the recall and resentencing application, the incarcerated person 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 incarcerated person. At the time of release, the warden or the warden’s representative shall ensure that the incarcerated person has each of the following in their possession: a discharge medical summary, full medical records, state
identification, parole or postrelease community supervision medications, and all property belonging to the incarcerated person. After discharge, any additional records shall be sent to the incarcerated person’s forwarding address.
(m)
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 incarcerated person who has a serious and advanced illness with an end-of-life trajectory or who is found to be permanently medically incapacitated is eligible for recall and resentencing consideration and that recall and resentencing procedures shall be initiated upon that prognosis.
(n)
The provisions of this section shall be available to an incarcerated person who is sentenced to a county jail pursuant to
subdivision (h) of Section 1170. For purposes of those incarcerated persons, “secretary” or “warden” shall mean the county correctional administrator and “chief medical executive” shall mean a physician designated by the county correctional administrator, for this purpose.
(o)
This section does not apply to an incarcerated person sentenced to death or a term of life without the possibility of parole.
(p)
Beginning January 1, 2024, the California Judicial Council shall publicly release an annual report on the compassionate release program based on records provided by the department pursuant to this section and subsequent court records. The report shall include, but is not limited to, all of the following:
(1)
The number of people who were referred to the court for recall and resentencing disaggregated by race,
ethnicity, age, and gender identity and further disaggregated by the type of criteria on which the referral was based. The report shall identify the following categories of criteria for recall and resentencing referrals:
(A)
A serious and advanced illness with an end-of-life trajectory.
(B)
Functional impairment.
(C)
Cognitive impairment.
(2)
The number of people released by the court pursuant to this section, disaggregated by race, ethnicity, age, and gender identity.
(3)
The number of people denied resentencing sought pursuant to this section disaggregated by race, ethnicity, age, and gender identity.
(4)
Number of people
who pass away before completing the recall and resentencing process disaggregated by race, ethnicity, age, and gender identity.
(5)
Number of people denied resentencing sought pursuant to this section for lack of release plans with data disaggregated by race, ethnicity, age, and gender identity.
(6)
Number of cases pending decision with data disaggregated by race, ethnicity, age, and gender identity.

Legislative History

Amended by Stats. 2023, Ch. 131, Sec. 158. (AB 1754) Effective January 1, 2024.