AB 633 Assembly Bill

BILL NUMBER: AB 633	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JANUARY 4, 2010

INTRODUCED BY   Assembly Member Ammiano

                        FEBRUARY 25, 2009

    An act to amend Section 190.4 of the Penal Code, relating
to the death penalty.   An act to amend Section 2636 of
the Penal Code, relating to the Department of Corrections and
Rehabilitation. 



	LEGISLATIVE COUNSEL'S DIGEST


   AB 633, as amended, Ammiano.  Death penalty. 
 Department of Corrections and Rehabilitation: inmates and wards:
classification.  
   Existing law requires the Department of Corrections and
Rehabilitation to classify inmates and wards in order to prevent
inmate and ward sexual violence and to promote inmate and ward
safety, as specified. Existing law also requires the department to
consider specified risk factors when classifying the inmate. 

   This bill would add the sexual orientation and gender identity of
the inmate or ward, as specified, to the list of risk factors to be
considered, and would provide related directions to the department.
 
   The bill would prohibit this section from being construed to
require or justify expansion or construction of department
facilities.  
   Existing law, as amended by the Briggs Initiative at the November
7, 1978, statewide general election, provides that in any case in
which the defendant has been found guilty of first degree murder by a
jury, and the jury has been unable to reach an unanimous verdict
that one or more of the special circumstances charged are true, and
does not reach a unanimous verdict that all the special circumstances
charged are not true, the court shall dismiss the jury and shall
order a new jury impaneled to try the remaining alleged special
circumstances. If such new jury is unable to reach the unanimous
verdict that one or more of the special circumstances it is trying
are true, the court is required to dismiss the jury and in the court'
s discretion shall either order a new jury impaneled to try the
issues the previous jury was unable to reach the unanimous verdict
on, or impose a punishment of confinement in state prison for a term
of 25 years.  
   This bill would instead provide that in any case in which the
defendant has been found guilty of first degree murder by a jury, and
the jury has been unable to reach an unanimous verdict that one or
more of the special circumstances charged are true, and does not
reach a unanimous verdict that all the special circumstances charged
are not true, the court shall dismiss the jury and impose a
punishment of confinement in state prison for a term of 25 years.
 
   This bill would provide for the submission of its provisions to
the voters for approval. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:

   SECTION 1.    (a) The Legislature finds and declares
that inmates and wards of the Department of Corrections and
Rehabilitation may be at a heightened risk of sexual violence and
abuse based on certain risk factors, including being young, being
lesbian, gay, bisexual, or transgender, not having served a prior
term of commitment, or having a history of mental illness.  

   (b) It is the intent of the Legislature in enacting this act to
ensure that the Department of Corrections and Rehabilitation (1)
recognizes that wards or inmates may be at increased risk based on
these factors, and (2) provides vulnerable inmates or wards who are
determined to be at risk with heightened protection in classification
and housing decisions, without automatically subjecting them to
highly restrictive or isolated settings or denying them access to
programs and services. 
   SEC. 2.    Section 2636 of the   Penal Code
  is amended to read: 
   2636.  For the purposes of this section, all references to
classification of wards shall take effect upon the adoption of a
classification system for wards developed by the Department of
Corrections and Rehabilitation in compliance with Farrell v. Allen,
Alameda County Superior Court Case No. RG 03079344.
   The following practices shall be instituted to prevent sexual
violence and promote inmate and ward safety in the Department of
Corrections and Rehabilitation:
   (a) The Department of Corrections and Rehabilitation inmate
classification and housing assignment procedures shall take into
account risk factors that can lead to inmates and wards becoming the
target of sexual victimization or of being sexually aggressive toward
others. Relevant considerations include:
   (1) Age of the inmate or ward. 
   (2) Self-reported safety concerns related to the sexual
orientation and gender identity of the inmate or ward.  

   (2) 
    (3)  Whether the offender is a violent or nonviolent
offender. 
   (3) 
    (4)  Whether the inmate or ward has served a prior term
of commitment. 
   (4) 
    (5)  Whether the inmate or ward has a history of mental
illness.
   (b) The Department of Corrections and Rehabilitation shall ensure
that staff members intervene when an inmate or ward appears to be the
target of sexual harassment or intimidation. 
   (c) The Department of Corrections and Rehabilitation shall not
require any inmate or ward to disclose or report his or her sexual
orientation or gender identity at any time, and a disclosure or
report shall not be discredited solely because it was not provided at
an earlier point in time.  
   (d) The Department of Corrections and Rehabilitation is prohibited
from disciplining or otherwise punishing an inmate or ward if the
inmate or ward fails to disclose or report his or her sexual
orientation or gender identity during all or part of his or her term
of commitment.  
   (e) Nothing in this section shall be construed to require or
justify expansion or construction of Department of Corrections and
Rehabilitation facilities.  
  SECTION 1.    Section 190.4 of the Penal Code is
amended to read:
   190.4.  (a) Whenever special circumstances as enumerated in
Section 190.2 are alleged and the trier of fact finds the defendant
guilty of first degree murder, the trier of fact shall also make a
special finding on the truth of each alleged special circumstance.
The determination of the truth of any or all of the special
circumstances shall be made by the trier of fact on the evidence
presented at the trial or at the hearing held pursuant to Subdivision
(b) of Section 190.1.
   In case of a reasonable doubt as to whether a special circumstance
is true, the defendant is entitled to a finding that is not true.
The trier of fact shall make a special finding that each special
circumstance charged is either true or not true. Whenever a special
circumstance requires proof of the commission or attempted commission
of a crime, such crime shall be charged and proved pursuant to the
general law applying to the trial and conviction of the crime.
   If the defendant was convicted by the court sitting without a
jury, the trier of fact shall be a jury unless a jury is waived by
the defendant and by the people, in which case the trier of fact
shall be the court. If the defendant was convicted by a plea of
guilty, the trier of fact shall be a jury unless a jury is waived by
the defendant and by the people.
   If the trier of fact finds that any one or more of the special
circumstances enumerated in Section 190.2 as charged is true, there
shall be a separate penalty hearing, and neither the finding that any
of the remaining special circumstances charged is not true, nor if
the trier of fact is a jury, the inability of the jury to agree on
the issue of the truth or untruth of any of the remaining special
circumstances charged, shall prevent the holding of a separate
penalty hearing.
   In any case in which the defendant has been found guilty by a
jury, and the jury has been unable to reach an unanimous verdict that
one or more of the special circumstances charged are true, and does
not reach a unanimous verdict that all the special circumstances
charged are not true, the court shall dismiss the jury and impose a
punishment of confinement in state prison for a term of 25 years.
   (b) If defendant was convicted by the court sitting without a jury
the trier of fact at the penalty hearing shall be a jury unless a
jury is waived by the defendant and the people, in which case the
trier of fact shall be the court. If the defendant was convicted by a
plea of guilty, the trier of fact shall be a jury unless a jury is
waived by the defendant and the people.
   If the trier of fact is a jury and has been unable to reach a
unanimous verdict as to what the penalty shall be, the court shall
dismiss the jury and shall order a new jury impaneled to try the
issue as to what the penalty shall be. If such new jury is unable to
reach a unanimous verdict as to what the penalty shall be, the court
in its discretion shall either order a new jury or impose a
punishment of confinement in state prison for a term of life without
the possibility of parole.
   (c) If the trier of fact which convicted the defendant of a crime
for which he may be subject to the death penalty was a jury, the same
jury shall consider any plea of not guilty by reason of insanity
pursuant to Section 1026, the truth of any special circumstances
which may be alleged, and the penalty to be applied, unless for good
cause shown the court discharges that jury in which case a new jury
shall be drawn. The court shall state facts in support of the finding
of good cause upon the record and cause them to be entered into the
minutes.
   (d) In any case in which the defendant may be subject to the death
penalty, evidence presented at any prior phase of the trial,
including any proceeding under a plea of not guilty by reason of
insanity pursuant to Section 1026 shall be considered an any
subsequent phase of the trial, if the trier of fact of the prior
phase is the same trier of fact at the subsequent phase.
   (e) In every case in which the trier of fact has returned a
verdict or finding imposing the death penalty, the defendant shall be
deemed to have made an application for modification of such verdict
or finding pursuant to Subdivision 7 of Section 11. In ruling on the
application, the judge shall review the evidence, consider, take into
account, and be guided by the aggravating and mitigating
circumstances referred to in Section 190.3, and shall make a
determination as to whether the jury's findings and verdicts that the
aggravating circumstances outweigh the mitigating circumstances are
contrary to law or the evidence presented. The judge shall state on
the record the reasons for his findings.
   The judge shall set forth the reasons for his ruling on the
application and direct that they be entered on the Clerk's minutes.
The denial of the modification of the death penalty verdict pursuant
to subdivision (7) of Section 1181 shall be reviewed on the defendant'
s automatic appeal pursuant to subdivision (b) of Section 1239. The
granting of the application shall be reviewed on the People's appeal
pursuant to paragraph (6).  
  SEC. 2.    Section 1 of this act affects an
initiative statute 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.