BILL NUMBER: AB 2173 CHAPTERED 07/09/02 CHAPTER 126 FILED WITH SECRETARY OF STATE JULY 9, 2002 APPROVED BY GOVERNOR JULY 9, 2002 PASSED THE ASSEMBLY JUNE 24, 2002 PASSED THE SENATE JUNE 20, 2002 AMENDED IN SENATE JUNE 18, 2002 AMENDED IN SENATE JUNE 4, 2002 AMENDED IN ASSEMBLY MAY 15, 2002 INTRODUCED BY Assembly Member Wayne FEBRUARY 20, 2002 An act to amend Sections 1170.1, 12022, 12022.5, 12022.53, 12022.55, 12022.7, and 12022.9 of the Penal Code, relating to criminal procedure. LEGISLATIVE COUNSEL'S DIGEST AB 2173, Wayne. Sentencing: enhancements. Existing law provides procedures for imposing consecutive sentences under specified circumstances, and for various sentence enhancements involving firearms. This bill would recast those provisions. The bill would set forth a general requirement that enhancements be in addition and consecutive to the offense, and that, where applicable, the middle term be imposed unless there are aggravating or mitigating circumstances. It would specifically make these general provisions applicable to indeterminate, as well as to determinate, sentences. It would eliminate various duplicative provisions. The bill would eliminate certain enhancements where other provisions of law provide for duplicate or more severe enhancements. The bill would make various clarifying changes and would make additional technical changes. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1170.1 of the Penal Code is amended to read: 1170.1. (a) Except as otherwise provided by law, and subject to Section 654, when any person is convicted of two or more felonies, whether in the same proceeding or court or in different proceedings or courts, and whether by judgment rendered by the same or by a different court, and a consecutive term of imprisonment is imposed under Sections 669 and 1170, the aggregate term of imprisonment for all these convictions shall be the sum of the principal term, the subordinate term, and any additional term imposed for applicable enhancements for prior convictions, prior prison terms, and Section 12022.1. The principal term shall consist of the greatest term of imprisonment imposed by the court for any of the crimes, including any term imposed for applicable specific enhancements. The subordinate term for each consecutive offense shall consist of one-third of the middle term of imprisonment prescribed for each other felony conviction for which a consecutive term of imprisonment is imposed, and shall include one-third of the term imposed for any specific enhancements applicable to those subordinate offenses. (b) If a person is convicted of two or more violations of kidnapping, as defined in Section 207, involving separate victims, the subordinate term for each consecutive offense of kidnapping shall consist of the full middle term and shall include the full term imposed for specific enhancements applicable to those subordinate offenses. (c) In the case of any person convicted of one or more felonies committed while the person is confined in a state prison or is subject to reimprisonment for escape from custody and the law either requires the terms to be served consecutively or the court imposes consecutive terms, the term of imprisonment for all the convictions that the person is required to serve consecutively shall commence from the time the person would otherwise have been released from prison. If the new offenses are consecutive with each other, the principal and subordinate terms shall be calculated as provided in subdivision (a). This subdivision shall be applicable in cases of convictions of more than one offense in the same or different proceedings. (d) When the court imposes a prison sentence for a felony pursuant to Section 1170 or subdivision (b) of Section 1168, the court shall also impose, in addition and consecutive to the offense of which the person has been convicted, the additional terms provided for any applicable enhancements. If an enhancement is punishable by one of three terms, the court shall impose the middle term unless there are circumstances in aggravation or mitigation, and state the reasons for its sentence choice, other than the middle term, on the record at the time of sentencing. The court shall also impose any other additional term that the court determines in its discretion or as required by law shall run consecutive to the term imposed under Section 1170 or subdivision (b) of Section 1168. In considering the imposition of the additional term, the court shall apply the sentencing rules of the Judicial Council. (e) All enhancements shall be alleged in the accusatory pleading and either admitted by the defendant in open court or found to be true by the trier of fact. (f) When two or more enhancements may be imposed for being armed with or using a dangerous or deadly weapon or a firearm in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for the infliction of great bodily injury. (g) When two or more enhancements may be imposed for the infliction of great bodily injury on the same victim in the commission of a single offense, only the greatest of those enhancements shall be imposed for that offense. This subdivision shall not limit the imposition of any other enhancements applicable to that offense, including an enhancement for being armed with or using a dangerous or deadly weapon or a firearm. (h) For any violation of an offense specified in Section 667.6, the number of enhancements that may be imposed shall not be limited, regardless of whether the enhancements are pursuant to this section, Section 667.6, or some other provision of law. Each of the enhancements shall be a full and separately served term. SEC. 2. Section 12022 of the Penal Code is amended to read: 12022. (a) (1) Except as provided in subdivisions (c) and (d), any person who is armed with a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless the arming is an element of that offense. This additional term shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with a firearm, whether or not the person is personally armed with a firearm. (2) Except as provided in subdivision (c), and notwithstanding subdivision (d), if the firearm is an assault weapon, as defined in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, the additional and consecutive term described in this subdivision shall be three years whether or not the arming is an element of the offense of which the person was convicted. The additional term provided in this paragraph shall apply to any person who is a principal in the commission of a felony or attempted felony if one or more of the principals is armed with an assault weapon or machinegun whether or not the person is personally armed with an assault weapon or machinegun. (b) (1) Any person who personally uses a deadly or dangerous weapon in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for one year, unless use of a deadly or dangerous weapon is an element of that offense. (2) If the person described in paragraph (1) has been convicted of carjacking or attempted carjacking, the additional term shall be one, two, or three years. (3) When a person is found to have personally used a deadly or dangerous weapon in the commission of a felony or attempted felony as provided in this subdivision and the weapon is owned by that person, the court shall order that the weapon be deemed a nuisance and disposed of in the manner provided in Section 12028. (c) Notwithstanding the enhancement set forth in subdivision (a), any person who is personally armed with a firearm in the commission of a violation or attempted violation of Section 11351, 11351.5, 11352, 11366.5, 11366.6, 11378, 11378.5, 11379, 11379.5, or 11379.6 of the Health and Safety Code, shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. (d) Notwithstanding the enhancement set forth in subdivision (a), any person who is not personally armed with a firearm who, knowing that another principal is personally armed with a firearm, is a principal in the commission of an offense or attempted offense specified in subdivision (c), shall be punished by an additional and consecutive term of imprisonment in the state prison for one, two, or three years. (e) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one, single enhancement. (f) Notwithstanding any other provision of law, the court may strike the additional punishment for the enhancements provided in subdivision (c) or (d) in an unusual case where the interests of justice would best be served, if the court specifies on the record and enters into the minutes the circumstances indicating that the interests of justice would best be served by that disposition. SEC. 3. Section 12022.5 of the Penal Code is amended to read: 12022.5. (a) Except as provided in subdivision (b), any person who personally uses a firearm in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for 3, 4, or 10 years, unless use of a firearm is an element of that offense. (b) Notwithstanding subdivision (a), any person who personally uses an assault weapon, as specified in Section 12276 or Section 12276.1, or a machinegun, as defined in Section 12200, in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. (c) Notwithstanding Section 1385 or any other provisions of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. (d) Notwithstanding the limitation in subdivision (a) relating to being an element of the offense, the additional term provided by this section shall be imposed for any violation of Section 245 if a firearm is used, or for murder if the killing is perpetrated by means of shooting a firearm from a motor vehicle, intentionally at another person outside of the vehicle with the intent to inflict great bodily injury or death. (e) When a person is found to have personally used a firearm, an assault weapon, or a machinegun in the commission of a felony or attempted felony as provided in this section and the firearm, assault weapon, or machinegun is owned by that person, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Section 12028. (f) For purposes of imposing an enhancement under Section 1170.1, the enhancements under this section shall count as one, single enhancement. SEC. 4. Section 12022.53 of the Penal Code is amended to read: 12022.53. (a) This section applies to the following felonies: (1) Section 187 (murder). (2) Section 203 or 205 (mayhem). (3) Section 207, 209, or 209.5 (kidnapping). (4) Section 211 (robbery). (5) Section 215 (carjacking). (6) Section 220 (assault with intent to commit a specified felony). (7) Subdivision (d) of Section 245 (assault with a firearm on a peace officer or firefighter). (8) Section 261 or 262 (rape). (9) Section 264.1 (rape or sexual penetration in concert). (10) Section 286 (sodomy). (11) Section 288 or 288.5 (lewd act on a child). (12) Section 288a (oral copulation). (13) Section 289 (sexual penetration). (14) Section 4500 (assault by a life prisoner). (15) Section 4501 (assault by a prisoner). (16) Section 4503 (holding a hostage by a prisoner). (17) Any felony punishable by death or imprisonment in the state prison for life. (18) Any attempt to commit a crime listed in this subdivision other than an assault. (b) Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony personally uses a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 10 years. The firearm need not be operable or loaded for this enhancement to apply. (c) Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), and who in the commission of that felony intentionally and personally discharges a firearm, shall be punished by an additional and consecutive term of imprisonment in the state prison for 20 years. (d) Notwithstanding any other provision of law, any person who is convicted of a felony specified in subdivision (a), Section 246, or subdivision (c) or (d) of Section 12034, and who in the commission of that felony intentionally and personally discharges a firearm and proximately causes great bodily injury, as defined in Section 12022.7, or death, to any person other than an accomplice, shall be punished by an additional and consecutive term of imprisonment in the state prison for 25 years to life. (e) (1) The enhancements provided in this section shall apply to any person who is a principal in the commission of an offense if both of the following are pled and proved: (A) The person violated subdivision (b) of Section 186.22. (B) Any principal in the offense committed any act specified in subdivision (b), (c), or (d). (2) An enhancement for participation in a criminal street gang pursuant to Chapter 11 (commencing with Section 186.20) of Title 7 of Part 1 shall not be imposed on a person in addition to an enhancement imposed pursuant to this subdivision, unless the person personally used or personally discharged a firearm in the commission of the offense. (f) Only one additional term of imprisonment under this section shall be imposed per person for each crime. If more than one enhancement per person is found true under this section, the court shall impose upon that person the enhancement that provides the longest term of imprisonment. An enhancement involving a firearm specified in Section 12021.5, 12022, 12022.3, 12022.4, 12022.5, or 12022.55 shall not be imposed on a person in addition to an enhancement imposed pursuant to this section. An enhancement for great bodily injury as defined in Section 12022.7, 12022.8, or 12022.9 shall not be imposed on a person in addition to an enhancement imposed pursuant to subdivision (d). (g) Notwithstanding any other provision of law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person found to come within the provisions of this section. (h) Notwithstanding Section 1385 or any other provision of law, the court shall not strike an allegation under this section or a finding bringing a person within the provisions of this section. (i) The total amount of credits awarded pursuant to Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 or pursuant to Section 4019 or any other provision of law shall not exceed 15 percent of the total term of imprisonment imposed on a defendant upon whom a sentence is imposed pursuant to this section. (j) For the penalties in this section to apply, the existence of any fact required under subdivision (b), (c), or (d) shall be alleged in the information or indictment and either admitted by the defendant in open court or found to be true by the trier of fact. When an enhancement specified in this section has been admitted or found to be true, the court shall impose punishment pursuant to this section rather than imposing punishment authorized under any other provision of law, unless another provision of law provides for a greater penalty or a longer term of imprisonment. (k) When a person is found to have used or discharged a firearm in the commission of an offense that includes an allegation pursuant to this section and the firearm is owned by that person, a coparticipant, or a coconspirator, the court shall order that the firearm be deemed a nuisance and disposed of in the manner provided in Section 12028. (l) The enhancements specified in this section shall not apply to the lawful use or discharge of a firearm by a public officer, as provided in Section 196, or by any person in lawful self-defense, lawful defense of another, or lawful defense of property, as provided in Sections 197, 198, and 198.5. SEC. 5. Section 12022.55 of the Penal Code is amended to read: 12022.55. Notwithstanding Section 12022.5, any person who, with the intent to inflict great bodily injury or death, inflicts great bodily injury, as defined in Section 12022.7, or causes the death of a person, other than an occupant of a motor vehicle, as a result of discharging a firearm from a motor vehicle in the commission of a felony or attempted felony, shall be punished by an additional and consecutive term of imprisonment in the state prison for 5, 6, or 10 years. SEC. 6. Section 12022.7 of the Penal Code is amended to read: 12022.7. (a) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years. (b) Any person who personally inflicts great bodily injury on any person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature, shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, "paralysis" means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism. (c) Any person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. (d) Any person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years. (e) Any person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, "domestic violence" has the meaning provided in subdivision (b) of Section 13700. (f) As used in this section, "great bodily injury" means a significant or substantial physical injury. (g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense. (h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense. SEC. 7. Section 12022.9 of the Penal Code is amended to read: 12022.9. Any person who, during the commission of a felony or attempted felony, knows or reasonably should know that the victim is pregnant, and who, with intent to inflict injury, and without the consent of the woman, personally inflicts injury upon a pregnant woman that results in the termination of the pregnancy shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. The additional term provided in this subdivision shall not be imposed unless the fact of that injury is charged in the accusatory pleading and admitted or found to be true by the trier of fact. Nothing in this section shall be construed as affecting the applicability of subdivision (a) of Section 187. SEC. 8. The amendments to subdivisions (b) and (c) of Section 1170.1 of the Penal Code, in Section 1 of this act, are intended to be technical amendments only and are not intended to make any substantive changes to those subdivisions. SEC. 9. The amendment to subdivision (g) of Section 1170.1 of the Penal Code, in Section 1 of this act, is intended to clarify the application of that subdivision and conform the language of that subdivision to the decision of the Court of Appeal in People v. Arndt (1999) 76 Cal.App.4th 387, 398-399 (Discussion, Section 3). SEC. 10. In repealing the specific provisions relating to enhancements being imposed consecutively in paragraph (1) of subdivision (a), paragraph (1) of subdivision (b), and subdivision (c) of Section 12022 of the Penal Code, in Section 2 of this act, paragraph (1) of subdivision (a) and paragraph (2) of subdivision (b) of Section 12022.5 of the Penal Code, in Section 3 of this act, subdivisions (b), (c), and (d) of Section 12022.53 of the Penal Code, in Section 4 of this act, Section 12022.55 of the Penal Code, in Section 5 of this act, subdivisions (a), (b), (c), (d), and (e) of Section 12022.7 of the Penal Code, in Section 6 of this act, and in subdivision (a) of Section 12022.9 of the Penal Code, in Section 7 of this act, it is the intent of the Legislature that the amended general provision of subdivision (d) of Section 1170.1 of the Penal Code shall apply to the enhancements provided in those sections. SEC. 11. In repealing the specific provisions relating to the middle term being imposed for enhancements in subdivisions (c) and (d) of Section 12022 of the Penal Code, in Section 2 of this act, and in subdivisions (d) and (e) of Section 12022.7 of the Penal Code, in Section 6 of this act, it is the intent of the Legislature that the amended general provision of subdivision (d) of Section 1170.1 of the Penal Code shall apply to the enhancements provided in those sections. SEC. 12. (a) In repealing the enhancement in paragraph (2) of subdivision (a) of Section 12022.5 of the Penal Code, in Section 3 of this act, the Legislature recognizes that the conduct punished under that provision is now subject to greater punishment under subdivision (b) of Section 12022.53 of the Penal Code. (b) In repealing the enhancement in paragraph (1) of subdivision (b) of Section 12022.5 of the Penal Code, in Section 3 of this act, the Legislature recognizes that the conduct punished under that provision is now subject to greater punishment under subdivision (d) of Section 12022.53 of the Penal Code. (c) In repealing the enhancement in subdivision (c) of Section 12022.5 of the Penal Code, in Section 3 of this act, the Legislature recognizes that the conduct punished under that provision is now subject to the same punishment under subdivision (a) of Section 12022.5 of the Penal Code. (d) The repeal of those provisions of Section 12022.5 of the Penal Code described in subdivisions (a), (b), and (c) shall not be given any retroactive application, and shall not be construed to benefit any person who committed a crime or received an enhancement or any other punishment while those provisions were in effect. SEC. 13. The amendments to subdivision (c) of Section 12022.5 of the Penal Code, in Section 3 of this act, to prohibit striking the enhancement, are intended to be declaratory of existing law as contained in People v. Thomas (1992) 4 Cal.4th 206, and People v. Ledesma (1997) 16 Cal.4th 90. SEC. 14. The amendments to subdivision (d) of Section 12022.5 of the Penal Code, in Section 3 of this act, are intended to be declaratory of existing law, and to conform the language of the statute to the decision of the California Supreme Court in People v. Ledesma (1997) 16 Cal.4th 90, and the decisions of the Court of Appeal in People v. Moore (1986) 178 Cal.App.3d 898, People v. Martinez (1987) 194 Cal.App.3d 15, People v. Joachim (1995) 38 Cal.App.4th 1526, People v. Johnson (1996) 51 Cal.App.4th 1329, 1332-1334 (Section II), and People v. Harper (2000) 82 Cal.App.4th 1413, 1416-1419 (Section III). SEC. 15. In repealing the specific provision relating to pleading enhancements in subdivision (g) of Section 12022.7 of the Penal Code, in Section 6 of this act, it is not the intent of the Legislature to alter the application of the general provision of subdivision (e) of Section 1170.1 of the Penal Code to the enhancements provided in that section. SEC. 16. In repealing the enhancements in paragraphs (1) and (2) of subdivision (b) of Section 12022.9 of the Penal Code, in Section 7 of this act, the Legislature recognizes that the conduct punished under those provisions is now subject to greater punishment under subdivision (d) of Section 12022.53 of the Penal Code. The repeal of those provisions of Section 12022.9 of the Penal Code shall not be given any retroactive application, and shall not be construed to benefit any person who committed a crime or received an enhancement or any other punishment while those provisions were in effect. SEC. 17. With respect to the enhancements repealed by this act, the Legislature recognizes that the criminal conduct punished by those enhancements may be punished under other provisions of law. It is not the intent of the Legislature to limit the discretion of prosecuting authorities in charging that criminal conduct under any of the remaining enhancement provisions.