BILL NUMBER: AB 971 AMENDED 01/03/94 BILL TEXT AMENDED IN ASSEMBLY JANUARY 3, 1994 AMENDED IN ASSEMBLY APRIL 12, 1993 INTRODUCED BY Assembly Members Jones and Costa MARCH 1, 1993 An act to add Section 1170.12 to the Penal Code, relating to sentencing. LEGISLATIVE COUNSEL'S DIGEST AB 971, as amended, Jones. Sentencing: prior felony convictions. Under existing law, if a person has served a prior prison term and is convicted of a new offense, the court shall impose a 3-year term for each prior separate prison term served by the defendant if the {+ new offense and the +} prior prison term was for one of specified violent felonies including murder, mayhem, or arson, except as specified. Existing law provides that if the prior prison term was not for a violent felony and the new offense is any felony for which a prison sentence is imposed, then in addition and consecutive to any other prison term, the court shall impose a one-year term for each prior separate prison term served for any felony, except as specified. This bill would {- provide -} , among other things, {- that if a defendant has one prior felony conviction, as defined, 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 each felony for which the defendant is convicted. If the defendant has 2 or more prior felony convictions, the determinate term or minimum term for an indeterminate term shall be 3 times the term otherwise provided as punishment for each felony for which the defendant is convicted. The bill would further provide that if a defendant has 2 or more prior felony convictions for a serious felony, as defined, or a violent felony, as defined for which a determinate term of imprisonment is prescribed, the punishment for each serious or violent felony conviction shall be 25 years to life in prison-} {+ require consecutive sentencing, as specified, of certain defendants who have one or more current felony convictions or one or more prior felony convictions, including convictions for serious or violent felonies +} . The bill would also provide that probation shall not be granted nor shall the execution or imposition of sentence be suspended if the defendant has a prior felony conviction. Vote: majority. Appropriation: no. Fiscal committee: yes. State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 1170.12 is added to the Penal Code, to read: 1170.12. (a) 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 felony convictions as defined in subdivision (b), the court shall apply 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 shall not be granted nor shall the execution or imposition of sentence be suspended. (3) The length of time between the prior 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 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 conviction to more than one felony count, the court shall sentence each count pursuant to this section. (7) If there is a conviction to more than one count, the court shall impose the sentence for each conviction consecutive to any other count for which the defendant may be consecutively sentenced in the manner prescribed by law. (b) Notwithstanding any other provision of law and for the purposes of this section, a prior conviction of a felony shall include each of the following: (1) Any offense defined as a felony in this state. The determination of whether a prior conviction is a prior felony conviction for purposes of this section shall be made upon the date of the 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 felony for purposes of this section: -} {+ (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 felony, as defined in subdivision (c) of Section 667.5, or violent felony, as defined in subdivision (c) of Section 1192.7, 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 felony shall be determined as follows: (1) The determination of whether a prior conviction is a prior 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 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 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 similar facility. -} {+ (D) The commitment to the California Rehabilitation Center or any other facility whose function is rehabilitative diversion from state prison. +} (2) A conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in state prison. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined under California law. {- (3) A juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if the juvenile was 16 years of age or older at the time of the commission of the offense, the offense alleged to have been committed was an offense listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, the juvenile was found to be a fit and proper subject to be dealt with under the juvenile court law, and 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. (c) (1) If a defendant has one prior 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 each felony for which the defendant is convicted. (2) If a defendant has two or more prior felony convictions that have been pled and proved, the determinate term or minimum term for an indeterminate term shall be three times the term otherwise provided as punishment for each felony for which the defendant is convicted. (3) If a defendant has two or more prior felony convictions that have been pled and proved, and if the felony conviction is for a serious felony as defined in Section 1192.7 or a violent felony as defined in subdivision (c) of Section 667.5 for which a determinate term of imprisonment is prescribed, the punishment for each serious or violent felony conviction shall be 25 years to life in prison. The term of 25 years to life in prison for each conviction shall be served consecutive to any other term of imprisonment for which a consecutive term may be imposed by law. The term of 25 years to life shall not be included in any determination pursuant to Section 1170.1. Any other term imposed subsequent to any term of 25 years to life shall not be merged therein but shall commence at the time the person would otherwise have been released from prison. (d) (1) Notwithstanding any other law, this section shall be applied in every case in which a defendant has a prior felony conviction. The prosecuting attorney shall plead and prove each prior felony conviction except as provided in paragraph (2). -} {+ (3) A prior juvenile adjudication shall constitute a prior felony conviction for purposes of sentence enhancement if all of the following apply: (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 either listed in subdivision (b) of Section 707 of the Welfare and Institutions Code, or listed in subdivision (b) as a felony. (C) The juvenile was found to be a fit and proper subject to be dealt with under 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. (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 a prior felony conviction: (1) If a defendant has one prior 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) If a defendant has two or more prior felony convictions that have been pled and proved, the term for the current felony conviction shall be an indeterminate sentence calculated as the greater of the following: (i) Three times the term otherwise provided as punishment for each current felony conviction subsequent to the two or more prior 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 this chapter, 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. +} (2) The prosecuting attorney may move to dismiss or strike a prior felony conviction allegation in the furtherance of justice pursuant to Section 1385 or if there is insufficient evidence to prove the prior 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. {- (e) Prior 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 felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior felony conviction allegation except as provided in paragraph (3) of subdivision (d). -} {+ (e) Prior 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 felony convictions. (f) It is the intent of the Legislature in enacting this section to ensure longer prison sentences and greater punishment for those who commit a felony and have previously been convicted of a serious or violent felony, or both. +} SEC. 2. If any provision of this act or the application thereof to any person or circumstances is held invalid, that invalidity shall not affect other provisions or applications of the act which can be given effect without the invalid provision or application, and to this end the provisions of this act are severable.