BILL NUMBER: AB 1029 CHAPTERED 09/09/94 BILL TEXT CHAPTER 447 FILED WITH SECRETARY OF STATE SEPTEMBER 9, 1994 APPROVED BY GOVERNOR SEPTEMBER 8, 1994 PASSED THE ASSEMBLY AUGUST 31, 1994 PASSED THE SENATE AUGUST 30, 1994 AMENDED IN SENATE AUGUST 29, 1994 AMENDED IN SENATE AUGUST 26, 1994 AMENDED IN SENATE AUGUST 19, 1994 AMENDED IN SENATE MAY 16, 1994 AMENDED IN SENATE APRIL 4, 1994 AMENDED IN ASSEMBLY JANUARY 27, 1994 AMENDED IN ASSEMBLY JANUARY 19, 1994 INTRODUCED BY Assembly Member Epple (Coauthor: Senator Peace) MARCH 1, 1993 An act to amend Sections 667.71 and 1203.066 of, and to add Section 667.61 to, the Penal Code, relating to sex offenses. LEGISLATIVE COUNSEL'S DIGEST AB 1029, Epple. Sex offenses. (1) Existing law prescribes enhanced prison terms for, among other things, repeat offenders. This bill would provide that any person convicted of a felony violation of specified sex offenses shall be punished by an additional consecutive term of imprisonment in the state prison for 25 years to life if one or more of any specified circumstances is true. (2) Existing law provides that probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within those provisions be stricken for, among others, any person who commits any lewd or lascivious acts or continuous sexual abuse of a child under 14 years of age. This bill would, among other things, delete and add various offenses to the list of offenses specified for this purpose. (3) Existing law defines a "habitual sexual offender" for the purpose of enhanced punishment and delayed parole provisions and makes those provisions applicable to persons found guilty of committing specified sex crimes. This bill would include kidnapping with the intent to commit those crimes in the habitual sexual offender provision as well as an offense committed in another jurisdiction that has all the elements described in the above provisions. (4) Under existing law, a habitual sexual offender, as defined, is punishable by 25 years in the state prison or, under certain circumstances, 25 years to life, a prison term that requires application of a specified statutory term reduction provision. Existing law prohibits the release on parole of any habitual sexual offender, sentenced as specified, until he or she has been incarcerated for at least 20 years. This bill would, instead, specify that a habitual sexual offender is punishable by imprisonment in state prison for 25 years to life and would prohibit application of the term reduction provision. The bill would, likewise, prohibit the release on parole of any habitual sexual offender until he or she has been incarcerated for at least 25 years. (5) This bill would become operative only if AB 2261 and AB 3707 of the 1993-94 Regular Session, and AB 19 and SB 26 of the 1993-94 First Extraordinary Session, are enacted. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS: SECTION 1. Section 667.61 is added to the Penal Code, to read: 667.61. (a) A person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j). (b) Except as provided in subdivision (a), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j). (c) This section shall apply to any of the following offenses: (1) A violation of paragraph (2) of subdivision (a) of Section 261. (2) A violation of paragraph (1) of subdivision (a) of Section 262. (3) A violation of Section 264.1. (4) A violation of subdivision (b) of Section 288. (5) A violation of subdivision (a) of Section 289. (6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066. (d) The following circumstances shall apply to the offenses specified in subdivision (c): (1) The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c). (2) The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c). (3) The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense in violation of Section 205 or 206. (4) The defendant committed the present offense during the commission of a burglary, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c). (e) The following circumstances shall apply to the offenses specified in subdivision (c): (1) Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 208, 209, or 209.5. (2) Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary, as defined in subdivision (a) of Section 460, or during the commission of a burglary of a building, including any commercial establishment, which was then closed to the public, in violation of Section 459. (3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.7 or 12022.8. (4) The defendant personally used a dangerous or deadly weapon or firearm in the commission of the present offense in violation of Section 12022, 12022.3, or 12022.5. (5) The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim. (6) The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense. (7) The defendant administered a controlled substance to the victim by force, violence, or fear in the commission of the present offense in violation of Section 12022.75. (f) If only the minimum number of circumstances specified in subdivision (d) or (e) which are required for the punishment provided in subdivision (a) or (b) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a) or (b) rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law. Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e). (g) The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or offenses committed against a single victim during a single occasion. If there are multiple victims during a single occasion, the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.6, if applicable. (h) Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, any person who is subject to punishment under this section for any offense specified in paragraphs (1) to (6), inclusive, of subdivision (c). (i) For the penalties provided in this section to apply, the existence of any fact required under subdivision (d) or (e) 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. (j) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of 25 years in the state prison imposed pursuant to subdivision (a) or 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum term of 25 or 15 years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of 25 or 15 years in the state prison. SEC. 2. Section 667.71 of the Penal Code is amended to read: 667.71. (a) For the purpose of this section, a habitual sexual offender is a person who has been previously convicted of one or more of the offenses listed in subdivision (d) and who is convicted in the present proceeding of one of those offenses. (b) A habitual sexual offender is punishable by imprisonment in the state prison for 25 years to life. Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any minimum term of 25 years in the state prison imposed pursuant to this section. However, in no case shall the minimum term of 25 years be reduced by more that 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of 25 years in the state prison. (c) At the request of the prosecutor and in lieu of the punishment specified in subdivision (b), the court shall order that the defendant be punished pursuant to Section 667.6, 667.61, 667.7, or 1170.1, if applicable. (d) This section shall apply to persons found guilty of violating paragraph (2) of subdivision (a) of Section 261, paragraph (1) of subdivision (a) of Section 262, Section 264.1, subdivision (a) or (b) of Section 288, subdivision (a) of Section 289, or of committing sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person, or found guilty of kidnapping, as punished in subdivision (d) of Section 208, or an offense committed in another jurisdiction that has all the elements of an offense specified in this subdivision. (e) This section shall apply only if the defendant's status as a habitual sexual offender is alleged in the information, and either admitted by the defendant in open court, or found to be true by the jury trying the issue of guilt or by the court where guilt is established by a plea of guilty or nolo contendere or by trial by court sitting without a jury. SEC. 3. Section 1203.066 of the Penal Code is amended to read: 1203.066. (a) Notwithstanding Section 1203 or any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provisions of this section be stricken pursuant to Section 1385 for, any of the following persons: (1) A person who is convicted of violating Section 288 or 288.5 when the act is committed by the use of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (2) A person who caused bodily injury on the child victim in committing a violation of Section 288 or 288.5. (3) A person who is convicted of a violation of Section 288 or 288.5 and who was a stranger to the child victim or befriended the child victim for the purpose of committing an act in violation of Section 288 or 288.5, unless the defendant honestly and reasonably believed the victim was 14 years of age or older. (4) A person who used a weapon during the commission of a violation of Section 288 or 288.5. (5) A person who is convicted of committing a violation of Section 288 or 288.5 and who has been previously convicted of a violation of Section 261, 262, 264.1, 266, 266c, 267, 285, 286, 288, 288.5, 288a, or 289, or of assaulting another person with intent to commit a crime specified in this paragraph in violation of Section 220, or who has been previously convicted in another state of an offense which, if committed or attempted in this state, would constitute an offense enumerated in this paragraph. (6) A person who violated Section 288 or 288.5 while kidnapping the child victim in violation of Section 207, 208, or 209. (7) A person who is convicted of committing a violation of Section 288 or 288.5 against more than one victim. (8) A person who, in violating Section 288 or 288.5, has substantial sexual conduct with a victim who is under 14 years of age. (9) A person who, in committing a violation of Section 288 or 288.5, used obscene matter, as defined in Section 311, or matter, as defined in Section 311, depicting sexual conduct, as defined in Section 311.3. (b) As used in this section, "substantial sexual conduct" means penetration of the vagina or rectum by the penis of the offender or by any foreign object, oral copulation, or masturbation of either the victim or the offender. (c) Paragraph (7), (8), or (9) of subdivision (a) shall not apply when the court makes all of the following findings: (1) The defendant is the victim's natural parent, adoptive parent, stepparent, relative, or is a member of the victim's household who has lived in the household. (2) A grant of probation to the defendant is in the best interest of the child. (3) Rehabilitation of the defendant is feasible, and the defendant is placed in a recognized treatment program that is designed to deal with child molestation immediately after the grant of probation or the suspension of execution or imposition of sentence. (4) The defendant is removed from the household of the victim until the court determines that the best interests of the victim would be served by returning the defendant to the household of the victim. (5) There is no threat of physical harm to the child victim if probation is granted. The court upon making its findings pursuant to this subdivision is not precluded from sentencing the defendant to jail or prison, but retains the discretion not to do so. The court shall state its reasons on the record for whatever sentence it imposes on the defendant. The court shall order the psychiatrist or psychologist who is appointed pursuant to Section 288.1 to include a consideration of the factors specified in paragraphs (2), (3), and (4) in making his or her report to the court. (d) The existence of any fact which would make a person ineligible for probation under subdivision (a) 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. SEC. 4. This bill shall become operative only if Assembly Bill 2261 and Assembly Bill 3707 of the 1993-94 Regular Session, and Assembly Bill 19 and Senate Bill 26 of the 1993-94 First Extraordinary Session, are enacted and become effective on or before January 1, 1995.