BILL NUMBER: AB 50 AMENDED
BILL TEXT
AMENDED IN ASSEMBLY MAY 3, 2005
INTRODUCED BY Assembly Member Leno
DECEMBER 6, 2004
An act to amend Section 667 of Sections
667 and 1170.12 of, and to add Section 1170.05 to, the Penal
Code, relating to sentencing.
LEGISLATIVE COUNSEL'S DIGEST
AB 50, as amended, Leno. Crimes.
Existing law, including 2 initiatives, requires that 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, then the court must adhere to
specified sentence enhancements to be served consecutively and follow
other specified sentencing restrictions. Upon a 2nd felony
conviction, a defendant shall be punished for twice the term, as
specified, and upon a 3rd felony conviction shall be punished for 25
years to life. The initiatives provide that their provisions may
be amended by a 2/3 vote of each house of the Legislature.
This bill would prevent a defendant with 2 prior qualifying
serious or violent felony convictions whose current offense is
neither a serious or violent felony as defined, from receiving a
Third Strike sentence of 25 years to life unless the current offense
is a specified controlled substance offense, a felony sex offense, as
specified, or possession of a firearm or deadly weapon. By imposing
additional duties on prosecutors, the bill would impose a
state-mandated local program.
This bill would also permit a defendant who meets specified
criteria, and who was previously sentenced to at least 25 years to
life, to make a motion for resentencing in accordance with these
provisions.
The California Constitution requires the state to reimburse local
agencies and school districts for certain costs mandated by the
state. Statutory provisions establish procedures for making that
reimbursement.
This bill would provide that no reimbursement is required by this
act for a specified reason.
Existing law, added by initiative statute, requires that 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, then the court must adhere to
specified sentence enhancements to be served consecutively and follow
other specified sentencing restrictions.
This bill would make a technical, nonsubstantive change to the
language of this provision.
The initiative statute provides that any amendment to its
provisions by the Legislature shall require a 2/3 vote of the
membership of each house.
Vote: 2/3. Appropriation: no. Fiscal committee: no
yes . State-mandated local program: no
yes .
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 which 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 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 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 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 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 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 conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the 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 in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior 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 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 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 Except as provided in
subparagraph (C), if a defendant has two or more
prior felony convictions as defined in subdivision (d) 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 greater of:
(i) Three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior 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 felony convictions as
defined in subdivision (d) that have been pled and proved, and the
current offense is not a felony described in paragraph (1) of
subdivision (d) of this section, the defendant shall be sentenced
pursuant to paragraph (1) of subdivision (e) of this section, unless
the prosecution pleads and proves any of the following facts:
(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, Section 262, or in subparagraph (A)
of paragraph (2) of subdivision (a) of Section 290, except Sections
266, 285, paragraph (1) of subdivision (b), paragraph (e) of Section
286, or paragraph (1) of subdivision (b) of Section 288a.
(iii) The defendant possessed a firearm or, during the commission
of the current offense, was armed with a firearm or deadly weapon.
(f) (1) Notwithstanding any other law, subdivisions (b) to (i),
inclusive, shall be applied in every case in which a defendant has a
prior felony conviction as defined in subdivision (d). The
prosecuting attorney shall plead and prove each prior felony
conviction except as provided in paragraph (2).
(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.
(g) 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
(2) of subdivision (f).
(h) All references to existing statutes in subdivisions (c) to
(g), inclusive, are to statutes as they existed on June 30, 1993.
(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 1170.05 is added to the
Penal Code , to read:
1170.05.
(a) A person who is currently serving a term of imprisonment for a
felony, whether by virtue of a trial or a plea, may make a written
motion, within 2 years of January 1, 2006, before the trial court
that entered the judgment of conviction in his or her case, for
resentencing if all of the following apply:
(1) The person was sentenced pursuant to paragraph (2) of
subdivision (e) of Section 667, paragraph (2) of subdivision (c) of
Section 1170.12, or both, of the Penal Code, prior to the sections
being amended by this act.
(2) All of the person's currently charged felonies which resulted
in the conviction were felonies that are not described as offenses
eligible for punishment under paragraph (2) of subdivision (e) of
Section 667, paragraph (2) of subdivision (c) of Section 1170.12, or
both, as amended by the act that added this section.
(3) The person has no prior felony conviction for murder,
manslaughter, rape, or other forcible sex offense, a lewd or
lascivious act with a child under 14 years of age, any crime where
Section 12022.7 has been pled and proved, or any crime where Penal
Code Sections 12022.5, 12022.53, or subdivision (b) of Section 12022
has been pled and proved.
(b) The written motion for resentencing shall specify all the
currently charged felonies that resulted in the sentence under
paragraph (2) of subdivision (e) of Section 667, paragraph (2) of
subdivision (c) of Section 1170.12, or both, of the Penal Code before
the amendments by this act, and shall also specify all of the prior
convictions alleged and proved under subdivision (d) of Section 667,
subdivision (a) of Section 1170.12, or both, as amended by the act
that added this section.
(c) A person who meets the requirements of subdivision (a) shall
be entitled to representation by counsel to prepare a motion under
this section, and for the purposes of resentencing, trial, or
retrial. The person may request appointment of counsel by sending a
written request to the court.
(d) If the court determines that the person making the motion for
resentencing was sentenced pursuant to the Three Strikes statute
prior to the amendment by this act, and the person meets the
requirements of subdivision (a), the court shall order that person to
be resentenced in compliance with the sentencing laws as amended by
this act. Unless another law provides for a longer sentence, the
court may resentence the defendant as if the defendant had been
convicted of one prior violent or serious felony.
(e) Under no circumstances may the person's resentencing result in
the person serving more time in custody than he or she would have
spent under the original sentence.
(f) Notwithstanding subdivision (b) of Section 977, the person
making the written motion for resentencing may waive his or her
appearance in court for the resentencing, provided that the
accusatory pleading is not amended at the resentencing, and that no
new trial or retrial of the individual will occur. The waiver shall
be in writing and signed by the defendant.
(g) A defendant who received a sentence which was doubled due to
having one serious or violent felony conviction shall not be entitled
to resentencing under this section.
(h) If the court that originally sentenced the defendant is not
available to resentence the defendant, the presiding judge may
designate another judge to hear the defendant's motion.
(i) Nothing in this section is intended to diminish or abrogate
any rights or remedies otherwise available to the defendant.
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 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 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 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 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 facility whose function is rehabilitative diversion from the
state prison.
(2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the 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 in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior felony
conviction for purposes of sentence enhancement if:
(A) The juvenile was sixteen years of age or older at the time he
or she committed the prior offense, and
(B) The prior offense is
(i) listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, or
(ii) listed in this subdivision as a felony, and
(C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law, and
(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 Except as provided in
subparagraph (C), if a defendant has two or more prior felony
convictions, as defined in paragraph (1) of 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 greater of
(i) three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions, or
(ii) twenty-five years or
(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 felony convictions as
defined in subdivision (b) that have been pled and proved, and the
current offense is not a felony described in paragraph (1) of
subdivision (b) of this section, the defendant shall be sentenced
pursuant to paragraph (1) of subdivision (c) of this section, unless
the prosecution pleads and proves any of the following facts:
(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, Section 262, or in subparagraph (A)
of paragraph (2) of subdivision (a) of Section 290, except Sections
266, 285, paragraph (1) of subdivision (b), paragraph (e) of Section
286, or paragraph (1) of subdivision (b) of Section 288a.
(iii) The defendant possessed a firearm or, during the commission
of the current offense, was armed with a firearm or deadly weapon.
(d) (1) Notwithstanding any other provision of law, this section
shall be applied in every case in which a defendant has a prior
felony conviction as defined in this section. The prosecuting
attorney shall plead and prove each prior felony conviction except as
provided in paragraph (2).
(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
(2) of subdivision (d).
SEC. 4.
No reimbursement is required by this act pursuant to Section 6 of
Article XIII B of the California Constitution because the only costs
that may be incurred by a local agency or school district will be
incurred because this act creates a new crime or infraction,
eliminates a crime or infraction, or changes the penalty for a crime
or infraction, within the meaning of Section 17556 of the Government
Code, or changes the definition of a crime within the meaning of
Section 6 of Article XIII B of the California Constitution.
All matter omitted in this version of the bill appears in the bill as
introduced in Assembly, December 6, 2004 (JR11)