BILL ANALYSIS
AB 426
Page 1
Date of Hearing: April 24, 2007
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Jose Solorio, Chair
AB 426 (Galgiani) - As Amended: April 10, 2007
As Proposed to be Amended in Committee
SUMMARY : Adds human trafficking to the list of serious
felonies and solicitation of murder to the list both serious and
violent felonies for purposes of sentencing pursuant to the
"Three Strikes" Law.
EXISTING LAW :
1)Defines a "violent felony" as any of the following [Penal Code
Section 667.5(c)]:
a) Murder or voluntary manslaughter;
b) Mayhem;
c) Rape or spousal rape accomplished by means of force or
threats of retaliation;
d) Sodomy by force or fear of immediate bodily injury on
the victim or another person;
e) Oral copulation by force or fear of immediate bodily
injury on the victim or another person;
f) Lewd acts on a child under the age of 14 years, as
defined;
g) Any felony punishable by death or imprisonment in the
state prison for life;
h) Any felony in which the defendant inflicts great bodily
injury on any person other than an accomplice, or any
felony in which the defendant has used a firearm, as
specified;
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i) Any robbery;
j) Arson of a structure, forest land, or property that
causes great bodily injury;
aa) Arson that causes an inhabited structure or property to
burn;
bb) Sexual penetration accomplished against the victim's
will by means of force, menace or fear of immediate bodily
injury on the victim or another person;
cc) Attempted murder;
dd) Explosion or attempted explosion of a destructive device
with the intent to commit murder;
ee) Explosion or ignition of any destructive device or any
explosive which causes bodily injury to any person;
ff) Explosion of a destructive device which causes death or
great bodily injury;
gg) Kidnapping;
hh) Assault with intent to commit mayhem, rape, sodomy or
oral copulation;
ii) Continuous sexual abuse of a child;
jj) Carjacking, as defined;
aaa) Rape or penetration of genital or anal openings by a
foreign object;
bbb) Felony extortion;
ccc) Threats to victims or witnesses, as specified;
ddd) First degree burglary, as defined, where it is proved
that another person other than an accomplice, was present
in the residence during the burglary;
eee) Use of a firearm during the commission of specified
crimes; and,
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fff) Possession, development, production, and transfers of
weapons of mass destruction.
1)Defines a "serious felony" as any of the following: murder or
manslaughter; mayhem; rape; sodomy; oral copulation; lewd acts
on a child under the age of 14; any felony punishable by death
or imprisonment for life; any felony in which the defendant
inflicts great bodily injury; attempted murder; assault with
the intent to commit rape or robbery; assault with a deadly
weapon or instrument on a peace officer; assault by a life
prisoner on a non-inmate; assault with a deadly weapon by an
inmate; arson; exploding a destructive devise with the
intention to commit murder or great bodily injury;
first-degree burglary; armed robbery or bank robbery;
kidnapping; holding of a hostage by a person confined to a
state prison; attempting to commit a felony punishable by
death or life in prison; any felony where the defendant
personally used a dangerous or deadly weapon; selling or
otherwise providing heroin, PCP or any type of
methamphetamine-related drug; forcible sexual penetration;
grand theft involving a firearm; carjacking; assault with the
intent to commit mayhem, rape, sodomy or forcible oral
copulation; throwing acid or other flammable substance;
assault with a deadly weapon on a peace officer; assault with
a deadly weapon on a member of the transit authority;
discharge of a firearm in an inhabited dwelling or car; rape
or sexual penetration done in concert; continuous sexual abuse
of a child; shooting from a vehicle; intimidating a victim or
witness; any attempt to commit the above-listed crimes except
assault or burglary; and using a firearm in the commission of
a crime and possession of weapons of mass destruction. [Penal
Code Section 1192.7(c).]
2)States that every person who, with intent that the crime be
committed, solicits another person to commit or join in the
commission of murder shall be punished by imprisonment in the
state prison for three, six, or nine years. [Penal Code
Section 653f(b).]
3)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has previously
been convicted of two or more serious or violent offenses as
specified, the term for the current conviction is an
indeterminate term of life in prison with the minimum term
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calculated as the greater of 25 years, three times the term
provided for each current felony conviction, or the
determinate term which would otherwise be imposed including
enhancements. (Penal Code Sections 667 and 1170.12.)
4)Provides that if a defendant is convicted of a felony offense
and it is pled and proved that the defendant has been
convicted of one prior serious or violent offense as defined,
the term of imprisonment is twice the term otherwise imposed
for the current offense. (Penal Code Sections 667 and
1170.12.)
5)Provides that a defendant, who is convicted of any current
felony, with prior convictions of two or more "violent or
serious" felonies, must receive a life sentence with a minimum
term of 25 years. The minimum term for any defendant with two
prior serious or violent offenses must be at least 25 years.
In many cases, multiple terms of 25-years-to-life must be
imposed - one for each count (separately charged offense) which
does not arise from the same operative facts in the current
case. Where multiple convictions do arise from separate
operative facts, the court has discretion to impose
consecutive or concurrent terms. [Penal Code Section
667(c)(6).] According to a complex formula, in a rare case, a
different minimum term may be imposed if it would result in a
longer sentence than 25 years. [Penal Code Sections
667(d)(2)(A)(i) to (iii), 667(a) and (d)(2)(i), and
1170.12(c)(2)(A).]
6)States that where a defendant is convicted of any felony with
a prior conviction for a single serious or violent felony, the
sentence imposed must be twice the term otherwise provided as
punishment. [Penal Code Sections 667(d)(1) and
1170.12(c)(1).]
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "Public safety,
prison, sentencing, and parole reform are four of the key
policy reform issues that are being heavily debated in
Sacramento in 2007. The increasingly problematic 'prison
crisis' has spurred even more discussion and debate at the
outset of 2007 than in past years. Such discussions are only
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complicated by the involvement of the courts in the prison
health crisis and the imminent threat of the possibility of
releasing inmates before their terms expire. United States
District Judges Lawrence Karlton and Thelton Henderson have
indicated that they are seriously considering options such as
early release for an untold number of inmates, a prison
population cap and a complete federal takeover of the entire
prison system. In response to the judges' most recent
suggestion of early release of inmates, Governor
Schwarzenegger has indicated that all options to address the
prison crisis are on the table.
"Early release of inmates is a serious concern as it relates to
public safety in California. While the discussion regarding
the early release of inmates is often only suggested in the
context of non-serious and non-violent offenders, the
reference to 'non-serious' and 'non-violent' can be misleading
to Californians and public safety in California.
"These terms can be misleading as many inmates who are
considered 'non-violent' or 'non-serious' have had previous
convictions for serious or violent crimes or their cases were
plea-bargained to lesser, non-violent crimes that may have
been truly violent or serious. Additionally, some crimes,
such as 'human trafficking', 'child abuse likely to produce
great bodily injury', and 'stalking' are not even classified
as 'violent felonies'. This bill will add some of the crimes
that are currently considered non-violent and/or non-serious
to the list of violent felonies. This bill will help to
ensure that crimes that are truly violent and serious are
treated as such under the law."
2)Background on Three Strikes : The Three Strikes law was
enacted by AB 971 (Jones/Costa), Chapter 12, Statutes of 1994,
and by Proposition 184 passed by the voters on November 8,
1994. Mandatory provisions beyond those listed in "Existing
Law" above include: a juvenile adjudication (finding by a
juvenile court judge that a minor committed a crime) may
constitute an adult strike prior, although a minor is not
entitled to a jury trial; a person sentenced under the Three
Strikes law may not be committed to any facility other than
prison; the Three Strikes law prohibits plea-bargaining; Three
Strikes eliminates any "wash-out" period, requiring that any
prior or serious or violent felony conviction be used
regardless of when it occurred; requires the prosecuting
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attorney to plead and prove each prior felony conviction; and,
Three Strikes may only be amended by a two-thirds vote of the
Legislature or a ballot measure approved by the electorate.
3)Costs of Adding Offenses to the List of Serious and Violent
Offenses : Adding an offense to the list of crimes already
specified as "serious" or "violent" will create longer prison
sentences for some offenders as a result of sentencing under
Three Strikes. Proposition 21, enacted by initiative in 2000,
significantly increased the number of offenses included on the
serious or violent felony list. The Secretary of State in its
March 2000 Voter Pamphlet stated that the fiscal cost of
adding several offenses to the list of serious or violent
felonies was an annual cost of $300 million. The California
Department of Corrections and Rehabilitation placed the annual
cost of a non-elderly inmate in California at about $43,000.
[2007-2008 Budget Act, page CR6.]
4)Prior Legislation :
a) AB 677 (Parra) added solicitation of murder to the
definition of a "serious" felony. AB 677 was held on the
Assembly Committee on Appropriations' Suspense File.
b) AB 1838 (Hertzberg), Chapter 606. Statutes of 2002,
added offenses perpetrated by means of a weapon of mass
destruction to the list of crimes that constitute a violent
felony.
REGISTERED SUPPORT / OPPOSITION :
Support
Crime Victims United
Conference of Delegates of California Bar Associations (CDCBA)
Opposition
California Attorneys for Criminal Justice
American Civil Liberties Union
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744