BILL NUMBER: AB 35 INTRODUCED
BILL TEXT
INTRODUCED BY Assembly Member Strickland
(Coauthors: Assembly Members Cox and Pescetti)
DECEMBER 7, 1998
An act to amend Sections 190.3, 264, and 288 of the Penal Code,
relating to the death penalty.
LEGISLATIVE COUNSEL'S DIGEST
AB 35, as introduced, Strickland. Death penalty: rape and child
molestation.
Existing law punishes the offenses of rape and lewd and lascivious
acts upon a child under the age of 14 years by imprisonment in the
state prison for 3, 6, or 8 years. Existing law also requires
increased punishment for subsequent convictions for either of these
two offenses, so that one prior conviction of either offense will
result in twice the term otherwise provided as punishment for the
current offense.
This bill would authorize imposition of the death penalty on a
defendant convicted of rape if that defendant has one prior rape
conviction that has been pled and proved. This bill would also
authorize imposition of the death penalty on a defendant convicted of
a lewd and lascivious act on a child under the age of 14 years, if
that defendant has a prior conviction for that offense that has been
pled and proved.
Existing law, added by initiative measure, requires that after the
determination of guilt has been made in death penalty cases, a
separate penalty phase hearing must be held to determine whether or
not the death penalty should be imposed.
This bill would also require that the determination to impose the
death penalty upon conviction for either rape or child molestation
with a like prior conviction, be made pursuant to the above
initiative measure requiring a separate penalty phase hearing. By
amending an initiative measure, this bill will only become effective
when submitted to, and approved by, the voters.
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 190.3 of the Penal Code is amended to read:
190.3. If the defendant has been found guilty of murder in the
first degree, and a special circumstance has been charged and found
to be true, or if the defendant may be subject to the death penalty
pursuant to subdivision (a) of Section 264 or subdivision (d) of
Section 288, or if the defendant may be subject to the death penalty
after having been found guilty of violating subdivision (a) of
Section 1672 of the Military and Veterans Code or Sections
Section 37, 128, 219, or 4500 of this code, the
trier of fact shall determine whether the penalty shall be death or
confinement in state prison for a term of life without the
possibility of parole. In the proceedings on the question of
penalty, evidence may be presented by both the people and the
defendant as to any matter relevant to aggravation, mitigation, and
sentence including, but not limited to, the nature and circumstances
of the present offense, any prior felony conviction or convictions
whether or not such the conviction or
convictions involved a crime of violence, the presence or absence of
other criminal activity by the defendant which involved the use or
attempted use of force or violence or which involved the express or
implied threat to use force or violence, and the defendant's
character, background, history, and mental
condition and physical condition.
However, no evidence shall be admitted regarding other criminal
activity by the defendant which did not involve the use or attempted
use of force or violence or which did not involve the express or
implied threat to use force or violence. As used in this section,
criminal activity does not require a conviction.
However, in no event shall evidence of prior criminal activity be
admitted for an offense for which the defendant was prosecuted and
acquitted. The restriction on the use of this evidence is intended
to apply only to proceedings pursuant to this section and is not
intended to affect statutory or decisional law allowing such
this evidence to be used in any other
proceedings.
Except for evidence in proof of the offense or special
circumstances which subject a defendant to the death penalty, no
evidence may be presented by the prosecution in aggravation unless
notice of the evidence to be introduced has been given to the
defendant within a reasonable period of time as determined by the
court, prior to trial. Evidence may be introduced without
such this notice in rebuttal to evidence
introduced by the defendant in mitigation.
The trier of fact shall be instructed that a sentence of
confinement to state prison for a term of life without the
possibility of parole may , in the future after
sentence is imposed, be commuted or modified to a sentence that
includes the possibility of parole by the Governor of the State of
California.
In determining the penalty, the trier of fact shall take into
account any of the following factors if relevant:
(a) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of any special
circumstances found to be true pursuant to Section 190.1.
(b) The presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.
(c) The presence or absence of any prior felony conviction.
(d) Whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance.
(e) Whether or not the victim was a participant in the defendant's
homicidal conduct or consented to the homicidal act.
(f) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification
or extenuation for his or her conduct.
(g) Whether or not the defendant acted under extreme
duress or under the substantial domination of another person.
(h) Whether or not at the time of the offense the capacity of the
defendant to appreciate the criminality of his or her
conduct or to conform his or her conduct to the
requirements of law was impaired as a result of mental disease or
defect, or the affects of intoxication.
(i) The age of the defendant at the time of the crime.
(j) Whether or not the defendant was an accomplice to the offense
and his or her participation in the commission of the
offense was relatively minor.
(k) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.
After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier of
fact shall consider, take into account and be guided by the
aggravating and mitigating circumstances referred to in this section,
and shall impose a sentence of death if the trier of fact concludes
that the aggravating circumstances outweigh the mitigating
circumstances. If the trier of fact determines that the mitigating
circumstances outweigh the aggravating circumstances the trier of
fact shall impose a sentence of confinement in state prison for a
term of life without the possibility of parole.
SEC. 2. Section 264 of the Penal Code is amended to read:
264. (a) Rape, as defined in Section 261 or 262, is punishable by
imprisonment in the state prison for three, six, or eight years.
Notwithstanding any other provision of law, a person convicted
of rape, as defined in Section 261, who has one prior conviction for
that offense and that prior conviction has been pled and proved, may
be punished by death, pursuant to Section 190.3. Unlawful
sexual intercourse, as defined in Section 261.5, is punishable either
by imprisonment in a county jail for not more than one year or in
the state prison.
(b) In addition to any punishment imposed under this section, the
judge may assess a fine not to exceed seventy dollars ($70) against
any person who violates Section 261, 261.5, or 262 with the proceeds
of this fine to be used in accordance with Section 1463.23. The
court shall, however, take into consideration the defendant's ability
to pay, and no defendant shall be denied probation because of his or
her inability to pay the fine permitted under this subdivision.
SEC. 3. Section 288 of the Penal Code is amended to read:
288. (a) Any person who willfully and lewdly commits any lewd or
lascivious act, including any of the acts constituting other crimes
provided for in Part 1, upon or with the body, or any part or member
thereof, of a child who is under the age of 14 years, with the intent
of arousing, appealing to, or gratifying the lust, passions, or
sexual desires of that person or the child, is guilty of a felony and
shall be punished by imprisonment in the state prison for three,
six, or eight years.
(b) (1) Any person who commits an act described in subdivision (a)
by use of force, violence, duress, menace, or fear of immediate and
unlawful bodily injury on the victim or another person, is guilty of
a felony and shall be punished by imprisonment in the state prison
for three, six, or eight years.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent adult by use of force, violence,
duress, menace, or fear of immediate and unlawful bodily injury on
the victim or another person, with the intent described in
subdivision (a), is guilty of a felony and shall be punished by
imprisonment in the state prison for three, six, or eight years.
(c) (1) Any person who commits an act described in subdivision (a)
with the intent described in that subdivision, and the victim is a
child of 14 or 15 years, and that person is at least 10 years older
than the child, is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year. In
determining whether the person is at least 10 years older than the
child, the difference in age shall be measured from the birth date of
the person to the birth date of the child.
(2) Any person who is a caretaker and commits an act described in
subdivision (a) upon a dependent adult, with the intent described in
subdivision (a), is guilty of a public offense and shall be punished
by imprisonment in the state prison for one, two, or three years, or
by imprisonment in a county jail for not more than one year.
(d) Notwithstanding any other provision of law, a person
convicted under subdivision (a) or (b) who has one prior conviction
for an offense under either subdivision (a) or (b), and that prior
conviction has been pled and proved, may be punished by death,
pursuant to Section 190.3.
(e) In any arrest or prosecution under this section or
Section 288.5, the peace officer, district attorney, and the court
shall consider the needs of the child victim and shall do whatever is
necessary, within existing budgetary resources, and constitutionally
permissible to prevent psychological harm to the child victim or to
prevent psychological harm to the dependent adult victim resulting
from participation in the court process.
(e)
(f) Upon the conviction of any person for a violation of
subdivision (a) or (b), the court may, in addition to any other
penalty or fine imposed, order the defendant to pay an additional
fine not to exceed ten thousand dollars ($10,000). In setting the
amount of the fine, the court shall consider any relevant factors,
including, but not limited to, the seriousness and gravity of the
offense, the circumstances of its commission, whether the defendant
derived any economic gain as a result of the crime, and the extent to
which the victim suffered economic losses as a result of the crime.
Every fine imposed and collected under this section shall be
deposited in the Victim-Witness Assistance Fund to be available for
appropriation to fund child sexual exploitation and child sexual
abuse victim counseling centers and prevention programs pursuant to
Section 13837.
If the court orders a fine imposed pursuant to this subdivision,
the actual administrative cost of collecting that fine, not to exceed
2 percent of the total amount paid, may be paid into the general
fund of the county treasury for the use and benefit of the county.
(f)
(g) For purposes of paragraph (2) of subdivision (b) and
paragraph (2) of subdivision (c), the following definitions apply:
(1) "Caretaker" means an owner, operator, administrator, employee,
independent contractor, agent, or volunteer of any of the following
public or private facilities when the facilities provide care for
elder or dependent adults:
(A) Twenty-four hour health facilities, as defined in Sections
1250, 1250.2, and 1250.3 of the Health and Safety Code.
(B) Clinics.
(C) Home health agencies.
(D) Adult day health care centers.
(E) Secondary schools that serve dependent adults ages 18 to 22
years and postsecondary educational institutions that serve dependent
adults or elders.
(F) Sheltered workshops.
(G) Camps.
(H) Community care facilities, as defined by Section 1402 of the
Health and Safety Code, and residential care facilities for the
elderly, as defined in Section 1569.2 of the Health and Safety Code.
(I) Respite care facilities.
(J) Foster homes.
(K) Regional centers for persons with developmental disabilities.
(L) A home health agency licensed in accordance with Chapter 8
(commencing with Section 1725) of Division 2 of the Health and Safety
Code.
(M) An agency that supplies in-home supportive services.
(N) Board and care facilities.
(O) Any other protective or public assistance agency that provides
health services or social services to elder or dependent adults,
including, but not limited to, in-home supportive services, as
defined in Section 14005.14 of the Welfare and Institutions Code.
(P) Private residences.
(2) "Board and care facilities" means licensed or unlicensed
facilities that provide assistance with one or more of the following
activities:
(A) Bathing.
(B) Dressing.
(C) Grooming.
(D) Medication storage.
(E) Medical dispensation.
(F) Money management.
(3) "Dependent adult" means any person 18 years of age or older
who has a mental disability or disorder that restricts his or her
ability to carry out normal activities or to protect his or her
rights, including, but not limited to, persons who have developmental
disabilities, persons whose mental abilities have significantly
diminished because of age.
(g)
(h) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) apply to the owners, operators, administrators,
employees, independent contractors, agents, or volunteers working at
these public or private facilities and only to the extent that the
individuals personally commit, conspire, aid, abet, or facilitate any
act prohibited by paragraph (2) of subdivision (b) and paragraph (2)
of subdivision (c).
(h)
(i) Paragraph (2) of subdivision (b) and paragraph (2) of
subdivision (c) do not apply to a caretaker who is a spouse of, or
who is in an equivalent domestic relationship with, the dependent
adult under care.
SEC. 4. Section 1 of this act affects an initiative statute and
shall become effective only when submitted to, and approved by, the
voters pursuant to subdivision (c) of Section 10 of Article II of the
California Constitution.