BILL NUMBER: AB 426	INTRODUCED
	BILL TEXT


INTRODUCED BY   Assembly Member Galgiani

                        FEBRUARY 16, 2007

   An act to amend Sections 667.5 and 1192.7 of the Penal Code,
relating to felonies.


	LEGISLATIVE COUNSEL'S DIGEST


   AB 426, as introduced, Galgiani. Felonies: serious and violent.
   Existing law, as amended by Proposition 83 of the November 7,
2006, statewide general election, classifies listed felonies as
"violent felonies." Existing law, as amended by Proposition 21, of
the March 7, 2000, statewide election, also classifies listed
felonies as "serious felonies."
   This bill would declare legislative intent to clarify which
offenses are serious and violent and would make technical,
nonsubstantive changes to existing law.
   Vote: majority. Appropriation: no. Fiscal committee: no.
State-mandated local program: no.


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

  SECTION 1.  Section 667.5 of the Penal Code is amended to read:
   667.5.  Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
   (a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition  to  and
consecutive to any other prison terms therefor, the court shall
impose a three-year term for each prior separate prison term served
by the defendant where the prior offense was one of the violent
felonies specified in subdivision (c). However, no additional term
shall be imposed under this subdivision for any prison term served
prior to a period of 10 years in which the defendant remained free of
both prison custody and the commission of an offense  which
  that  results in a felony conviction.
   (b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
   (c) For the purpose of this section, "violent felony" shall mean
any of the following:
   (1) Murder or voluntary manslaughter.
   (2) Mayhem.
   (3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
   (4) Sodomy as defined in subdivision (c) or (d) of Section 286.
   (5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
   (6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
   (7) Any felony punishable by death or imprisonment in the state
prison for life.
   (8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
   (9) Any robbery.
   (10) Arson, in violation of subdivision (a) or (b) of Section 451.

   (11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
   (12) Attempted murder.
   (13) A violation of Section 12308, 12309, or 12310.
   (14) Kidnapping.
   (15) Assault with the intent to commit a specified felony, in
violation of Section 220.
   (16) Continuous sexual abuse of a child, in violation of Section
288.5.
   (17) Carjacking, as defined in subdivision (a) of Section 215.
   (18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
   (19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
   (20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
   (21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
   (22) Any violation of Section 12022.53.
   (23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
   (d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
   (e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
   (f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
   (g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
   (h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
   (i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
   (j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
   (k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
   This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
  SEC. 2.  Section 1192.7 of the Penal Code is amended to read:
   1192.7.  (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three  strikes" 
 strikes,"  or habitual sex offender statute instead of
engaging in plea bargaining over those offenses.
   (2) Plea bargaining in any case in which the indictment or
information charges any serious felony, any felony in which it is
alleged that a firearm was personally used by the defendant, or any
offense of driving while under the influence of alcohol, drugs,
narcotics, or any other intoxicating substance, or any combination
thereof, is prohibited, unless there is insufficient evidence to
prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a
substantial change in sentence.
   (3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining is prohibited unless there is insufficient evidence to
prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a
substantial change in sentence. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
   (b) As used in this section "plea bargaining" means any
bargaining, negotiation, or discussion between a criminal defendant,
or his or her counsel, and a prosecuting attorney or judge, whereby
the defendant agrees to plead guilty or nolo contendere, in exchange
for any promises, commitments, concessions, assurances, or
consideration by the prosecuting attorney or judge relating to any
charge against the defendant or to the sentencing of the defendant.
   (c) As used in this section, "serious felony" means any of the
following:
   (1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
sodomy by force, violence, duress, menace, threat of great bodily
injury, or fear of immediate and unlawful bodily injury on the victim
or another person; (5) oral copulation by force, violence, duress,
menace, threat of great bodily injury, or fear of immediate and
unlawful bodily injury on the victim or another person; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (15) exploding a destructive device or any
explosive with intent to injure; (16) exploding a destructive device
or any explosive causing bodily injury, great bodily injury, or
mayhem; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) robbery
or bank robbery; (20) kidnapping; (21) holding of a hostage by a
person confined in a state prison; (22) attempt to commit a felony
punishable by death or imprisonment in the state prison for life;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) selling, furnishing, administering, giving, or
offering to sell, furnish, administer, or give to a minor any heroin,
cocaine, phencyclidine (PCP), or any methamphetamine-related drug,
as described in paragraph (2) of subdivision (d) of Section 11055 of
the Health and Safety Code, or any of the precursors of
methamphetamines, as described in subparagraph (A) of paragraph (1)
of subdivision (f) of Section 11055 or subdivision (a) of Section
11100 of the Health and Safety Code; (25) any violation of
subdivision (a) of Section 289 where the act is accomplished against
the victim's will by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) assault with a deadly weapon, firearm, machinegun, assault
weapon, or semiautomatic firearm or assault on a peace officer or
firefighter, in violation of Section 245; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Sections 245.2, 245.3, or 245.5;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 12034; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
   (d) As used in this section, "bank robbery" means to take or
attempt to take, by force or violence, or by intimidation from the
person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control,
management, or possession of, any bank, credit union, or any savings
and loan association.
   As used in this subdivision, the following terms have the
following meanings:
   (1) "Bank" means any member of the Federal Reserve System, and any
bank, banking association, trust company, savings bank, or other
banking institution organized or operating under the laws of the
United States, and any bank the deposits of which are insured by the
Federal Deposit Insurance Corporation.
   (2) "Savings and loan association" means any federal savings and
loan association and any "insured institution" as defined in Section
401 of the National Housing Act, as amended, and any federal credit
union as defined in Section 2 of the Federal Credit Union Act.
   (3) "Credit union" means any federal credit union and any
state-chartered credit union the accounts of which are insured by the
Administrator of the National Credit Union administration.
   (e) 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. 3.  It is the intent of the Legislature to clarify which
offenses are violent or serious offenses and which offenses are,
therefore, noviolent or nonserious offenses.