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AB-327 Sentencing: Three Strikes.(2011-2012)

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AB327:v95#DOCUMENT

Amended  IN  Senate  May 17, 2012
Amended  IN  Senate  March 26, 2012
Amended  IN  Assembly  January 26, 2012
Amended  IN  Assembly  January 04, 2012

CALIFORNIA LEGISLATURE— 2011–2012 REGULAR SESSION

Assembly Bill
No. 327


Introduced  by  Assembly Member Davis, Mitchell

February 10, 2011


An act to amend Sections 667, 667.1, 1170.12, and 1170.125 of the Penal Code, relating to sentencing.


LEGISLATIVE COUNSEL'S DIGEST


AB 327, as amended, Davis. Sentencing: Three Strikes.
Existing law, contained in 2 initiative statutes, commonly known as the Three Strikes law, requires increased penalties for certain recidivist offenders in addition to any other enhancement or penalty provisions that may apply. Existing law requires that if a defendant has 2 or more prior violent or serious felony convictions, the term for the current felony conviction shall be an indeterminate term of imprisonment in the state prison for life with a minimum term to be served, as specified.
This bill would provide that a defendant who has 2 or more prior violent or serious felony convictions shall receive the enhanced indeterminate life sentence only if the defendant’s current conviction is for a serious or violent felony, as defined.
The bill would provide that it would become effective only when submitted to, and approved by, the voters, and would require the Secretary of State to submit the measure to the voters at the November 4, 2014, statewide general election, unless an initiative measure amending these provisions is approved by the voters at the November 6, 2012, statewide general election, in which case the bill would provide that the Secretary of State shall not submit the measure to the voters at the November 4, 2014, statewide general election.
Vote: MAJORITY   Appropriation: NO   Fiscal Committee: YES   Local Program: NO  

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


SECTION 1.

 Section 667 of the Penal Code is amended to read:

667.
 (a) (1) In compliance with subdivision (b) of Section 1385, any person convicted of a serious felony who previously has been convicted of a serious felony in this state or of any offense committed in another jurisdiction that includes all of the elements of any serious felony, shall receive, in addition to the sentence imposed by the court for the present offense, a five-year enhancement for each such prior conviction on charges brought and tried separately. The terms of the present offense and each enhancement shall run consecutively.
(2) This subdivision shall not be applied when the punishment imposed under other provisions of law would result in a longer term of imprisonment. There is no requirement of prior incarceration or commitment for this subdivision to apply.
(3) The Legislature may increase the length of the enhancement of sentence provided in this subdivision by a statute passed by majority vote of each house thereof.
(4) As used in this subdivision, “serious felony” means a serious felony listed in subdivision (c) of Section 1192.7.
(5) This subdivision shall not apply to a person convicted of selling, furnishing, administering, or giving, or offering to sell, furnish, administer, or give to a minor any methamphetamine-related drug or any precursors of methamphetamine unless the prior conviction was for a serious felony described in subparagraph (24) of subdivision (c) of Section 1192.7.
(b) It is the intent of the Legislature in enacting subdivisions (b) to (i), inclusive, to ensure longer prison sentences and greater punishment for those who commit a felony and have been previously convicted of serious and/or violent felony offenses.
(c) Notwithstanding any other law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions as defined in subdivision (d), the court shall adhere to each of the following:
(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.
(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.
(3) The length of time between the prior serious or violent felony conviction and the current felony conviction shall not affect the imposition of sentence.
(4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.
(5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.
(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to subdivision (e).
(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6), the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.
(8) Any sentence imposed pursuant to subdivision (e) will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.
(d) Notwithstanding any other law and for the purposes of subdivisions (b) to (i), inclusive, a prior conviction of a serious or violent felony shall be defined as:
(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior serious or violent felony conviction for purposes of subdivisions (b) to (i), inclusive, shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior serious or violent felony conviction is a prior felony for purposes of subdivisions (b) to (i), inclusive:
(A) The suspension of imposition of judgment or sentence.
(B) The stay of execution of sentence.
(C) The commitment to the State Department of Health Services as a mentally disordered sex offender following a conviction of a felony.
(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.
(2) A prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison shall constitute a prior conviction of a particular serious or violent felony if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of the particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior serious or violent felony conviction for purposes of sentence enhancement if:
(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense.
(B) The prior offense is listed in subdivision (b) of Section 707 of the Welfare and Institutions Code or described in paragraph (1) or (2) as a serious or violent felony.
(C) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law.
(D) The juvenile was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because the person committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.
(e) For purposes of subdivisions (b) to (i), inclusive, and in addition to any other enhancement or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious or violent felony convictions:
(1) If a defendant has one prior serious or violent felony conviction, that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.
(2) (A) Except as provided in subparagraph (C), if a defendant has two or more prior serious or violent felony convictions, as defined in subdivision (d), that have been pled and proved, the term for a current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of:
(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious or violent felony convictions.
(ii) Imprisonment in the state prison for 25 years.
(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.
(C) If a defendant has two or more prior serious or violent felony convictions, as defined in subdivision (d), that have been pled and proved, and the current offense is not a serious or violent felony, as defined in subdivision (d), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (e), unless the prosecution pleads and proves any of the following:
(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
(ii) The current offense is a felony sex offense, as defined in subdivision (d) of Section 261.5 or Section 262, except for Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, and paragraph (1) of subdivision (b) and subdivision (e) of Section 288a.
(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.
(iv) The defendant suffered a prior conviction, as defined in subdivision (d), for any of the following serious or violent felonies:
(I) A sexually violent offense as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
(II) Oral copulation, as defined in Section 288a, with a child who is under 14 years of age, and who is more than 10 years younger than the defendant; sodomy, as defined in Section 286, with a child who is under 14 years of age, and who is more than 10 years younger than the defendant; or sexual penetration, as defined in Section 289, with a child who is under 14 years of age, and who is more than 10 years younger than the defendant.
(III) A lewd or lascivious act involving a child under 14 years of age in violation of Section 288.
(IV) An offense described in Sections 187 to 191.5, inclusive.
(V) Any serious or violent felony offense punishable by life imprisonment or death.
(f) (1) Notwithstanding any other law, subdivisions (b) to (i), inclusive, shall be applied in every case in which a defendant has a prior serious or violent felony conviction as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious or violent felony conviction except as provided in paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior serious or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious or violent conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior felony conviction, the court may dismiss or strike the allegation.
(g) Prior serious or violent felony convictions shall not be used in plea bargaining as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior serious or violent felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior serious or violent felony conviction allegation except as provided in paragraph (2) of subdivision (f).
(h) All references to existing statutes in subdivisions (c) to (g), inclusive, are to statutes as they existed on November 4, 2014.
(i) If any provision of subdivisions (b) to (h), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions which can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.
(j) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.

SEC. 2.

 Section 667.1 of the Penal Code is amended to read:

667.1.
 Notwithstanding subdivision (h) of Section 667, for all offenses committed on or after the effective date of this act, all references to existing statutes in subdivisions (c) to (g), inclusive, of Section 667, are to those statutes as they existed on November 4, 2014.

SEC. 3.

 Section 1170.12 of the Penal Code is amended to read:

1170.12.
 (a) Notwithstanding any other provision of law, if a defendant has been convicted of a felony and it has been pled and proved that the defendant has one or more prior serious or violent felony convictions, as defined in subdivision (b), the court shall adhere to each of the following:
(1) There shall not be an aggregate term limitation for purposes of consecutive sentencing for any subsequent felony conviction.
(2) Probation for the current offense shall not be granted, nor shall execution or imposition of the sentence be suspended for any prior offense.
(3) The length of time between the prior serious or violent felony conviction and the current felony conviction shall not affect the imposition of sentence.
(4) There shall not be a commitment to any other facility other than the state prison. Diversion shall not be granted nor shall the defendant be eligible for commitment to the California Rehabilitation Center as provided in Article 2 (commencing with Section 3050) of Chapter 1 of Division 3 of the Welfare and Institutions Code.
(5) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall not exceed one-fifth of the total term of imprisonment imposed and shall not accrue until the defendant is physically placed in the state prison.
(6) If there is a current conviction for more than one felony count not committed on the same occasion, and not arising from the same set of operative facts, the court shall sentence the defendant consecutively on each count pursuant to this section.
(7) If there is a current conviction for more than one serious or violent felony as described in paragraph (6) of this subdivision, the court shall impose the sentence for each conviction consecutive to the sentence for any other conviction for which the defendant may be consecutively sentenced in the manner prescribed by law.
(8) Any sentence imposed pursuant to this section will be imposed consecutive to any other sentence which the defendant is already serving, unless otherwise provided by law.
(b) Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a serious or violent felony shall be defined as:
(1) Any offense defined in subdivision (c) of Section 667.5 as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as a serious felony in this state. The determination of whether a prior conviction is a prior serious or violent felony conviction for purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. None of the following dispositions shall affect the determination that a prior conviction is a prior serious or violent felony for purposes of this section:
(A) The suspension of imposition of judgment or sentence.
(B) The stay of execution of sentence.
(C) The commitment to the State Department of Mental Health as a mentally disordered sex offender following a conviction of a felony.
(D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from the state prison.
(2) A prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison shall constitute a prior conviction of a particular serious or violent felony if the prior conviction in the other jurisdiction for an offense that includes all of the elements of the particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior serious or violent felony conviction for purposes of sentence enhancement if both of the following apply:
(A) The juvenile was 16 years of age or older at the time he or she committed the prior offense, and the prior offense is listed either in subdivision (b) of Section 707 of the Welfare and Institutions Code, in this subdivision as a serious or violent felony.
(B) The juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and he or she was adjudged a ward of the juvenile court within the meaning of Section 602 of the Welfare and Institutions Code because he or she committed an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.
(c) For purposes of this section, and in addition to any other enhancements or punishment provisions which may apply, the following shall apply where a defendant has one or more prior serious or violent felony convictions:
(1) If a defendant has one prior serious or violent felony conviction, as defined in subdivision (b), that has been pled and proved, the determinate term or minimum term for an indeterminate term shall be twice the term otherwise provided as punishment for the current felony conviction.
(2) (A) Except as provided in subparagraph (C), if a defendant has two or more prior serious or violent felony convictions, as defined in subdivision (b), that have been pled and proved, the term for the current felony conviction shall be an indeterminate term of life imprisonment with a minimum term of the indeterminate sentence calculated as the greatest of of:
(i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior serious or violent felony convictions.
(ii) Twenty-five years.
(iii) The term determined by the court pursuant to Section 1170 for the underlying conviction, including any enhancement applicable under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part 2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. Any other term imposed subsequent to any indeterminate term described in subparagraph (A) of paragraph (2) of this subdivision shall not be merged therein but shall commence at the time the person would otherwise have been released from prison.
(C) If a defendant has two or more prior serious or violent felony convictions, as defined in subdivision (b), that have been pled and proved, and the current offense is not a serious or violent felony, as described in paragraph (1) of subdivision (b), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (c), unless the prosecution pleads and proves any of the following:
(i) The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
(ii) The current offense is a felony sex offense, as defined in subdivision (d) of Section 261.5 or Section 262, except for Sections 266 and 285, paragraph (1) of subdivision (b) and subdivision (e) of Section 286, and paragraph (1) of subdivision (b) and subdivision (e) of Section 288a.
(iii) During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.
(iv) The defendant suffered a prior conviction for any of the following serious or violent felonies:
(I) A sexually violent offense, as defined in subdivision (b) of Section 6600 of the Welfare and Institutions Code.
(II) Oral copulation, as defined in Section 288a, with a child who is under 14 years of age, and who is more than 10 years younger than the defendant; sodomy, as defined in Section 286, with a child who is under 14 years of age, and who is more than 10 years younger than the defendant; or sexual penetration, as defined in Section 289, with a child who is under 14 years of age, and who is more than 10 years younger than the defendant.
(III) A lewd or lascivious act involving a child under 14 years of age in violation of Section 288.
(IV) An offense described in Sections 187 to 191.5, inclusive.
(V) Any serious or violent felony offense punishable by life imprisonment or death.
(d) (1) Notwithstanding any other provision of law, this section shall be applied in every case in which a defendant has one or more prior serious or violent felony convictions, as defined in this section. The prosecuting attorney shall plead and prove each prior serious or violent felony conviction except as provided in paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior serious or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious or violent conviction. If upon the satisfaction of the court that there is insufficient evidence to prove the prior serious or violent felony conviction, the court may dismiss or strike the allegation.
(e) Prior serious or violent felony convictions shall not be used in plea bargaining, as defined in subdivision (b) of Section 1192.7. The prosecution shall plead and prove all known prior serious or violent felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior serious or violent felony conviction allegation except as provided in paragraph (2) of subdivision (d).
(f) If any provision of subdivisions (a) to (e), inclusive, or the application thereof to any person or circumstance is held invalid, that invalidity shall not affect other provisions or applications of those subdivisions that can be given effect without the invalid provision or application, and to this end the provisions of those subdivisions are severable.
(g) The provisions of this section shall not be amended by the Legislature except by statute passed in each house by rollcall vote entered in the journal, two-thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.

SEC. 4.

 Section 1170.125 of the Penal Code is amended to read:

1170.125.
 Notwithstanding Section 2 of Proposition 184, as adopted at the November 8, 1994, general election, for all offenses committed on or after the effective date of this act, all references to existing statutes in Section 1170.12 are to those statutes as they existed on November 4, 2014.

SEC. 5.

 This act is an exercise of the public power of the people of the State of California for the protection of the health, safety, and welfare of the people of the State of California, and shall be liberally construed to effectuate those purposes.

SEC. 6.

 If any provision of this act, or the application thereof to any person or circumstance, is held invalid, that invalidity shall not affect any other provision or application of this act, which can be given effect without the invalid provision or application in order to effectuate the purposes of this act. To this end, the provisions of this act are severable.

SEC. 7.

 (a) Sections 1 to 6, inclusive, of this act affect initiative statutes, and shall become effective only when submitted to, and approved by, the voters of California, pursuant to subdivision (c) of Section 10 of Article II of the California Constitution.
(b) The (1) Except as provided in paragraph (2), the Secretary of State shall submit Sections 1 to 6, inclusive, of this act to the voters for approval at the November 4, 2014, statewide general election.
(2) If an initiative measure amending Section 667 or 1170.12 of the Penal Code is approved by the voters at the November 6, 2012, statewide general election, the Secretary of State shall not submit Sections 1 to 6, inclusive, of this act to the voters for approval at the November 4, 2014, statewide general election.