Store
2022 legislative update from Legal Services for Prisoners with Children
All laws listed below are effective Jan. 1, 2022, unless otherwise indicated
Prison and jail conditions
AB 110 (Petrie-Norris) Fraudulent unemployment claims by IPs (Pen. 11105.9, Unemployment Insurance 321.5). Effective Oct. 5, 2021. Requires CDCR to provide EDD, and EDD to electronically monitor (by Sept. 2023), data about IPs in CDCR: name, aliases, birth date, SSN, booking and expected release dates.
AB 128 (Budget Committee) Storage of audio/video surveillance (no statute; search AB 128 for 5225-001-0001, #2) Audio/video from pilot surveillance program at HDSP, CCWF, CSP-Sac, RJD, CSP-LAC, KVSP, CIW, CSP-Corcoran, SATF, SVSP, VSP, MCSP, CCI must be stored for at least 90 days.
For the following incidents, it must be stored as potential evidence until otherwise directed by CDCR Legal Affairs (or DA in a criminal case): (1) use of force, riots, suspected felony, incident resulting in injury or death, alleged sexual assault, alleged staff misconduct, incidents potentially referrable to DA, employee report to supervisor of injury; (2) if filed/reported within 90 days, inmate claims with CA Victim Comp. Bd. or as requested by Internal Affairs re: 3d level appeal.
Actual evidence must be preserved until an investigation is resolved AND there’s a written release by Internal Affairs, CDCR Legal Affairs or AG. CDCR must use video surveillance to review staff complaints or serious appeals or complaints.
AB 128 (Budget Committee) Funding for free phone, video calls, email in CDCR (no statute; search AB 128 for 5225-014-0001). Appropriates $20 million “to make telephone calls, video visitation and electronic communication available to incarcerated persons without cost to the incarcerated person or to the party with whom they are communicating, consistent with Section 6401 of the Penal Code.”
AB 145 (Budget Committee) Jail inspections by BSCC (Pen. 6031). Allows Board of State and Community Corrections (BSCC) to conduct surprise inspections of any area of a local detention facility.
AB 145 (Budget Committee) Prison CO training (Pen. 13602-13603). Requires all training of CDCR COs to adhere to standards of Commission on Correctional Peace Officer Standards and Training (CPOST). Reduces minimum training hours from 520 hours to 480 hours. Requires new COs to complete orientation and minimum of 160 hours of on-the-job observational training.
AB 263 (Arambula) Private detention facility health and safety compliance (Gov. 7321). Effective Sept. 24, 2021. Requires private detention facilities to comply with public health/occupational safety orders.
AB 292 (Stone) Rehabilitative programming in CDCR (Pen. 2933.7). CDCR “shall conduct programming in a manner that accomplishes all of the following”:
- Minimize disruption in programming due to transfers.
- Prioritize non-adverse transferees for resumption of programming.
- “Offer programming to the greatest extent possible,” even if restrictions are in place due to security or medical concerns.
- Ensure alternatives to in-person programming that don’t negatively affect the quality of in-person programming.
- Minimize waitlist times especially waits over a year.
- Minimize conflicts with work schedules.
- Make accessible in a timely manner to those who change status, security level or facility
- Offer variety of programming regardless of security level or sentence length.
SB 2 (Bradford) Prison/Jail/CO Liability for Civil Rights Violations (Civil 52.1(n)). Under the Tom Bane Civil Rights Act, if a custodial officer interferes with someone’s federal or state rights by threat, intimidation or coercion (or attempts to do so), the officer and the employing entity (e.g., CDCR or jail) are no longer immune from damages under state law for:
- Malicious prosecution (instituting or prosecuting a judicial or administrative proceeding maliciously and without probable cause). (Formerly immune per Gov. 821.6).
- Failing to obtain or furnish medical care. (Formerly, under Gov. 845.6, liable only if officer knew or had reason to know IP needed immediate care but failed to take reasonable action to summon such care; see 855.8, 855 for immunity for failure to diagnose/treat/confine/release for mental illness, addiction).
- Causing an injury to a prisoner or by a prisoner. (Prisons/jails newly liable; formerly immune under Gov. 844.6).
See also Policing section below (SB 2 strips police, police departments of same immunities).
SB 16 (Skinner) Disclosure of CO misconduct (Evid. 1045, Pen 832.5, 832.7, 832.12-.13).
- As of 7/1/22, requires disclosure of misconduct by CDCR COs and certain jail COs (see Pen. 830.1(c), 831.5):
- Sustained finding of unreasonable or excessive use of force or failure to intervene to stop another officers’ unreasonable or excessive use of force.
- Sustained finding of unlawful arrest or unlawful search.
- Sustained finding of conduct involving prejudice or discrimination.
- Investigations where officer resigned before the investigation was complete.
- Requires disclosure of records at earliest possible time, but no later than 45 days after request, except for incidents before Jan. 1, 2022, which must be disclosed after Jan. 1, 2023.
- Deletes provision that required courts to exclude records from trial evidence if the misconduct occurred more than five years before subject of the litigation.
See also Policing section: these and other requirements apply to peace officers.
SB 334 (Durazo) Private detention facilities standards, insurance (Ins. 679.75, Pen. 9506)
Requires a private detention facility for prisoners or civil detainees to comply with BSCC standards and state/local building, zoning, health, safety, and fire rules and be insured for general, automobile, and umbrella liability and workers’ compensation.
SB 416 (Hueso) Improving college opportunities in CDCR (Pen. 2053.1)
Co-sponsored by LSPC
- Requires CDCR college programs to be provided by state schools (UC, CSU, community college) or other accredited degree-granting nonprofit colleges/universities.
- Prioritizes programs with face-to-face instruction, transferable credits, free tuition, and student support services.
- Treats enrollment in 12 semester units (or equiv.) as full-time work/training assignment.
See also Juvenile Justice, SB 92, Commitments of juveniles after DJJ closure.
Release and Resentencing
AB 128 (Budget Committee) Counsel for IPs seeking parole (no statute; search AB 128 for 5225-013-0001). Appropriates $8.8 million and requires appointed counsel for IPs seeking parole to provide advice before comprehensive risk assessment (CRA) and before a full BPH hearing. IPs to receive no less than two hours consultation within 30 days of counsel’s appointment, including one hour on CRA. Funded through June 30, 2026.
AB 145 (Budget Committee) County Resentencing Pilot Program (Pen. 1170.01). Appropriates money to support and evaluate a pilot program (until Sept. 1, 2024) adopting a collaborative approach between DA and Public Defender offices (may also include community based organizations) on 1170(d) resentencing petitions. Participating DAs would have to adopt written criteria for when to recommend resentencing.
AB 145 (Budget Committee) Board of Parole Hearings (Gov. 12838.4, Pen. 3041.6, 3042, 5075, 5075.6, 5076.1-5076.3).
- Increases BPH to 21 commissioners.
- Allows video appearances.
- Requires cases to be referred to full board after a tie vote on a panel, with review limited to the record before the panel.
- Eliminates requirement of written notice to trial/sentencing judge.
- Eliminates authorization for trial/sentencing judge to send unprivileged info to BPH.
AB 145 (Budget Committee) Transfers to community correctional reentry facilities (Pen. 6258.1)
Expands eligibility for transfer to community correctional reentry facility to people who are not convicted of registrable sex offenses, have less than two years left to serve and have no escape history in last 10 years.
AB 1228 (Lee) Custody pending revocation hearing (Pen. 1203.2, 1203.25). When a person is arrested for a violation of probation/parole/PCRS, the court:
- Must release on OR (own recognizance) unless clear and convincing evidence conditions of release needed to protect public and ensure appearance.
- Cannot impose cash bail unless conditions of release are inadequate to ensure appearance – must consider ability to pay and make bail affordable.
- Cannot make person pay costs of conditions of release.
- Cannot deny release for felony conduct unless no reasonable conditions would ensure appearance.
Note: Doesn’t restrict custody/bail for new criminal charges.
SB 248 (Bates) Sexually violent predator (SVP) civil commitment (WIC 6601). If a person serving an indeterminate term in a state hospital as a SVP commits a new offense and is in CDCR custody, requires full evaluation and, if appropriate, filing of a new SVP petition to require the person to continue serving the original SVP term or serve a new SVP term.
SB 483 (Allen) Resentencing to remove enhancements (Pen. 117, 117.1).
- Requires resentencing for IPs serving sentences that include these repealed enhancements:
- For felony convictions with incarceration term, one-year enhancement for each prior felony incarceration term (repealed by SB 136 (2019) except for prior convictions for sexually violent offense not followed by a five-year period without committing an offense that resulted in a felony conviction, being in prison, having a felony jail term imposed or having any felony sentence not suspended)
- For certain drug convictions, three-year enhancement for each prior drug conviction as specified (repealed by SB 180 (2017) except for prior convictions for violating/conspiring to violate H&S 11380 – drug offenses involving minors.
- Requires courts to impose lesser sentence unless would endanger public safety.
- In all cases, prohibits courts from imposing longer sentence.
- Unless upper term was imposed originally imposed, cannot be imposed unless aggravating facts found true beyond a reasonable doubt at trial or per stipulation.
- Prohibits prosecutor from rescinding plea agreement based on recall of sentence.
- Provides appointed counsel to incarcerated people eligible for relief.
- Deadlines:
- CDCR/jails must identify eligible IPs and inform courts (1) by March 1, 2022, if currently serving the repealed enhancement, or (2) by July 1, 2022, for others.
- Courts must resentence (1) by Oct. 1, 2022, if currently serving the repealed enhancement, or (2) by Dec. 23, 2023, for others.
SB 775 (Becker) Expanded felony murder resentencing relief (Pen. 1170.95)
Expands resentencing relief to anyone convicted of:
- Murder “under any theory under which malice is imputed to a person based solely on that person’s participation in a crime.”
- Attempted murder under the natural and probable consequences doctrine.
- Manslaughter when the prosecution proceeded on a theory of felony murder or murder under the natural and probable consequences doctrine.
Changes the procedures as follows:
- Requires appointment of counsel on request if petition is “readily ascertainable.”
- Requires hearing on whether petition presents a prima facie case for relief.
- Requires court to explain decision not to issue order to show cause.
- Provides that a finding there was substantial evidence to support a conviction for murder, attempted murder or manslaughter is insufficient to prove, beyond a reasonable doubt, that the petitioner is ineligible for resentencing.
Legal Services for Prisoners with Children (LSPC) organizes communities impacted by the criminal justice system and advocates to release incarcerated people, to restore human and civil rights and to reunify families and communities. Reach them by email at info@prisonerswithchildren.org.
