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AB-31 Sentencing: violent felonies.(1993-1994)

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AB31:v93#DOCUMENT

Assembly Bill No. 31
CHAPTER 298

An act to amend Section 667.5 of the Penal Code, relating to sentencing.

[ Filed with Secretary of State  August 02, 1993. Approved by Governor  July 30, 1993. ]

LEGISLATIVE COUNSEL'S DIGEST


AB 31, Connolly. Sentencing: violent felonies.
Existing law defines the term “violent felony” for the purpose of the enhancement of prison terms for new offenses because of prior prison terms.
This bill would add the offense of kidnapping a person under 14 years of age to the list of offenses that constitute a “violent felony” for the above purpose.
This bill would incorporate additional changes in Section 667.5 of the Penal Code proposed by AB 112, to be operative only if AB 112 and this bill are both chaptered and become effective January 1, 1994, and this bill is chaptered last.

The people of the State of California do enact as follows:


SECTION 1.

 Section 667.5 of the Penal Code is amended to read:

667.5.
 Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:
(a)  Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.
(b)  Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.
(c)  For the purpose of this section, “violent felony” shall mean any of the following:
(1)  Murder or voluntary manslaughter.
(2)  Mayhem.
(3)  Rape as defined in paragraph (2) of subdivision (a) of Section 261.
(4)  Sodomy by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(5)  Oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(6)  Lewd acts on a child under the age of 14 years as defined in Section 288.
(7)  Any felony punishable by death or imprisonment in the state prison for life.
(8)  Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5 or 12022.55.
(9)  Any robbery perpetrated in an inhabited dwelling house, vessel, as defined in Section 21 of the Harbors and Navigation Code, which is inhabited and designed for habitation, inhabited 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.
(10)  Arson in violation of subdivision (a) of Section 451.
(11)  The offense defined in subdivision (a) of Section 289 where 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.
(12)  Attempted murder.
(13)  A violation of Section 12308.
(14)  Kidnapping in violation of subdivision (b) of Section 207.
(15)  Kidnapping, as punished in subdivision (b) of Section 208.
(16)  Continuous sexual abuse of a child in violation of Section 288.5.
The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for such extraordinary crimes of violence against the person.
(d)  For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole whichever first occurs including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.
(e)  The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison.
(f)  A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.
(g)  A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.
(h)  Serving a prison term includes any confinement time in any state prison or federal penal institution as punishment for commission of an offense, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of the confinement.
(i)  For the purposes of this section, a commitment to the State Department of Mental Health as a mentally disordered sex offender following a conviction of a felony, which commitment exceeds one year in duration, shall be deemed a prior prison term.
(j)  For the purposes of this section, when a person subject to the custody, control, and discipline of the Director of Corrections is incarcerated at a facility operated by the Department of the Youth Authority, that incarceration shall be deemed to be a term served in state prison.
(k)  Notwithstanding subdivisions (d) and (g) or any other provision of law, where one of the new offenses is committed while the defendant is temporarily removed from prison pursuant to Section 2690 or while the defendant is transferred to a community facility pursuant to Section 3416, 6253, or 6263, or while the defendant is on furlough pursuant to Section 6254, the defendant shall be subject to the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and consecutive term is imposed pursuant to any other provision of law.

SEC. 2.

 Section 667.5 of the Penal Code is amended to read:

667.5.
 Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:
(a)  Where one of the new offenses is one of the violent felonies specified in subdivision (c), in addition and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.
(b)  Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms therefor, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.
(c)  For the purpose of this section, “violent felony” shall mean any of the following:
(1)  Murder or voluntary manslaughter.
(2)  Mayhem.
(3)  Rape as defined in paragraph (2) of subdivision (a) of Section 261.
(4)  Sodomy by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(5)  Oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(6)  Lewd acts on a child under the age of 14 years as defined in Section 288.
(7)  Any felony punishable by death or imprisonment in the state prison for life.
(8)  Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice which has been charged and proved as provided for in Section 12022.7 or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in Section 12022.5 or 12022.55.
(9)  Any robbery perpetrated in an inhabited dwelling house, or vessel as defined in Section 21 of the Harbors and Navigation Code which is inhabited and designed for habitation, an inhabited floating home as defined in subdivision (d) of Section 18075.55 of the Health and Safety Code, an inhabited 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.
(10)  Arson in violation of subdivision (a) of Section 451.
(11)  The offense defined in subdivision (a) of Section 289 where 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.
(12)  Attempted murder.
(13)  A violation of Section 12308.
(14)  Kidnapping in violation of subdivision (b) of Section 207.
(15)  Kidnapping, as punished in subdivision (b) of Section 208.
(16)  Continuous sexual abuse of a child in violation of Section 288.5.
The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society’s condemnation for such extraordinary crimes of violence against the person.
(d)  For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody or until release on parole whichever first occurs including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.
(e)  The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison.
(f)  A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense which includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.
(g)  A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including any reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any reimprisonment after an escape from incarceration.
(h)  Serving a prison term includes any confinement time in any state prison or federal penal institution as punishment for commission of an offense, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of the confinement.
(i)  For the purposes of this section, a commitment to the State Department of Mental Health as a mentally disordered sex offender following a conviction of a felony, which commitment exceeds one year in duration, shall be deemed a prior prison term.
(j)  For the purposes of this section, when a person subject to the custody, control, and discipline of the Director of Corrections is incarcerated at a facility operated by the Department of the Youth Authority, that incarceration shall be deemed to be a term served in state prison.
(k)  Notwithstanding subdivisions (d) and (g) or any other provision of law, where one of the new offenses is committed while the defendant is temporarily removed from prison pursuant to Section 2690 or while the defendant is transferred to a community facility pursuant to Section 3416, 6253, or 6263, or while the defendant is on furlough pursuant to Section 6254, the defendant shall be subject to the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and consecutive term is imposed pursuant to any other provision of law.

SEC. 3.

 Section 2 of this bill incorporates amendments to Section 667.5 of the Penal Code proposed by both this bill and AB 112. It shall only become operative if (1) both bills are enacted and become effective on January 1, 1994, (2) each bill amends Section 667.5 of the Penal Code, and (3) this bill is enacted after AB 112, in which case Section 1 of this bill shall not become operative.