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California Law (Last Updated: March 4, 2014) |
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Penal Code - PEN |
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Part 2. OF CRIMINAL PROCEDURE |
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Title 7. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT |
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Chapter 4.8. Pregnant and Parenting Women’s Alternative Sentencing Program Act |
Section 1174.4.
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(a) Persons eligible for participation in this alternative sentencing program shall meet all of the following criteria:
(1) Pregnant women with an established history of substance abuse, or pregnant or parenting women with an established history of substance abuse who have one or more children under six years old at the time of entry into the program. For women with children, at least one eligible child shall reside with the mother in the facility.
(2) Never served a prior prison term for, nor been convicted in the present proceeding of, committing or attempting to commit, any of the following offenses:
(A) Murder or voluntary manslaughter.
(B) Mayhem.
(C) Rape.
(D) Kidnapping.
(E) Sodomy by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(F) Oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(G) Lewd acts on a child under 14 years of age, as defined in Section 288.
(H) Any felony punishable by death or imprisonment in the state prison for life.
(I) Any felony in which the defendant inflicts great bodily injury on any person, other than an accomplice, that has been charged and proved as provided for in Section 12022.53, 12022.7, or 12022.9, or any felony in which the defendant uses a firearm, as provided in Section 12022.5, 12022.53, or 12022.55, in which the use has been charged and proved.
(J) Robbery.
(K) Any robbery perpetrated in an inhabited dwelling house or trailer coach as defined in the Vehicle Code, or in the inhabited portion of any other building, wherein it is charged and proved that the defendant personally used a deadly or dangerous weapon, as provided in subdivision (b) of Section 12022, in the commission of that robbery.
(L) Arson in violation of subdivision (a) of Section 451.
(M) Sexual penetration in violation of subdivision (a) of Section 289 if the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(N) Rape or sexual penetration in concert, in violation of Section 264.1.
(O) Continual sexual abuse of a child in violation of Section 288.5.
(P) Assault with intent to commit mayhem, rape, sodomy, oral copulation, rape in concert with another, lascivious acts upon a child, or sexual penetration.
(Q) Assault with a deadly weapon or with force likely to produce great bodily injury in violation of subdivision (a) of Section 245.
(R) Any violent felony defined in Section 667.5.
(S) A violation of Section 12022.
(T) A violation of Section 18745.
(U) Burglary of the first degree.
(V) A violation of Section 11351, 11351.5, 11352, 11353, 11358, 11359, 11360, 11370.1, 11370.6, 11378, 11378.5, 11379, 11379.5, 11379.6, 11380, or 11383 of the Health and Safety Code.
(3) Has not been sentenced to state prison for a term exceeding 36 months.
(b) Prior to sentencing, if the court proposes to give consideration to a placement, the court shall consider a written evaluation by the probation department, which shall include the following:
(1) Whether the defendant is eligible for participation pursuant to this section.
(2) Whether participation by the defendant and her eligible children is deemed to be in the best interests of the children.
(3) Whether the defendant is amenable to treatment for substance abuse and would benefit from participation in the program.
(4) Whether the program is deemed to be in the best interests of an eligible child of the defendant, as determined by a representative of the appropriate child welfare services agency of the county if the child is a dependent child of the juvenile court pursuant to Section 300 of the Welfare and Institutions Code.
(c) The district attorney shall make a recommendation to the court as to whether or not the defendant would benefit from the program, which the court shall consider in making its decision. If the court's decision is without the concurrence of the district attorney, the court shall specify its reasons in writing and enter them into the record.
(d) If the court determines that the defendant may benefit from participation in this program, the court may impose a sentence of imprisonment pursuant to subdivision (h) of Section 1170 with the recommendation that the defendant participate in the program pursuant to this chapter. The court shall notify the department within 48 hours of imposition of this sentence.
(e) The Director of Corrections shall consider the court's recommendation in making a determination on the inmate's placement in the program.
(f) Women accepted for the program by the Director of Corrections shall be delivered by the county, pursuant to Section 1202a, to the facility selected by the department. Before the director accepts a woman for the program, the county shall provide to the director the necessary information to determine her eligibility and appropriate placement status. Priority for services and aftercare shall be given to inmates who are incarcerated in a county, or adjacent to a county, in which a program facility is located.
(g) Prior to being admitted to the program, each participant shall voluntarily sign an agreement specifying the terms and conditions of participation in the program.
(h) The department may refer inmates back to the sentencing court if the department determines that an eligible inmate has not been recommended for the program. The department shall refer the inmate to the court by an evaluative report so stating the department's assessment of eligibility, and requesting a recommendation by the court.
(i) Women who successfully complete the program, including the minimum of one year of transition services under intensive parole supervision, shall be discharged from parole. Women who do not successfully complete the program shall be returned to imprisonment pursuant to subdivision (h) of Section 1170 where they shall serve their original sentences. These persons shall receive full credit against their original sentences for the time served in the program, pursuant to Section 2933.