Bill Text: AZ SB1233 | 2018 | Fifty-third Legislature 2nd Regular | Introduced
Bill Title: Death penalty; repeal
Spectrum: Partisan Bill (Democrat 16-0)
Status: (Introduced - Dead) 2018-01-22 - Senate read second time [SB1233 Detail]
Download: Arizona-2018-SB1233-Introduced.html
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REFERENCE TITLE: death penalty; repeal |
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State of Arizona Senate Fifty-third Legislature Second Regular Session 2018
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SB 1233 |
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Introduced by Senators Mendez: Contreras, Dalessandro, Otondo, Quezada; Representatives Andrade, Benally, Cardenas, Clark, Engel, Fernandez, Gabaldón, Gonzales, Hernandez, Peten, Salman
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AN ACT
Amending sections 12‑120.21, 13‑701, 13‑706 and 13‑751, Arizona Revised Statutes; repealing sections 13‑752, 13‑753, 13‑754, 13‑755, 13‑756, 13‑757, 13‑758 and 13‑759, Arizona Revised Statutes; amending sections 13‑1105, 13‑3841, 13‑3859.02, 13‑3870, 13‑3906 and 13‑3961, Arizona Revised Statutes; repealing title 13, chapter 38, article 17, Arizona Revised Statutes; amending sections 13‑4031, 13‑4033, 13‑4040 and 13‑4041, Arizona Revised Statutes; repealing section 13‑4042, Arizona Revised Statutes; amending section 13‑4234, Arizona Revised Statutes; repealing section 13‑4234.01, Arizona Revised Statutes; amending sections 21‑102, 31‑240, 31-403 and 31‑445, Arizona Revised Statutes; relating to the repeal of the death penalty.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 12-120.21, Arizona Revised Statutes, is amended to read:
12-120.21. Jurisdiction and venue
A. The court of appeals shall have:
1. Appellate jurisdiction in all actions and proceedings originating in or permitted by law to be appealed from the superior court, except criminal actions involving crimes for which a sentence of death has actually been imposed.
2. Jurisdiction to issue writs of certiorari to review the lawfulness of awards of the industrial commission and to enter judgment affirming or setting aside the awards.
3. Jurisdiction to issue injunctions and other writs and orders necessary and proper to the complete exercise of its appellate jurisdiction.
4. Jurisdiction to hear and determine petitions for special actions brought pursuant to the Arizona rules of procedure for special actions, without regard to its appellate jurisdiction.
B. A case or appeal of which the court of appeals has jurisdiction in an action or proceeding originating in or permitted by law to be appealed from the superior court in a county shall be brought or filed in the division which that contains that county. An application for a writ of certiorari to review the lawfulness of an award of the industrial commission shall be brought in division 1.
Sec. 2. Section 13-701, Arizona Revised Statutes, is amended to read:
13-701. Sentence of imprisonment for felony; presentence report; aggravating and mitigating factors; consecutive terms of imprisonment; definition
A. A sentence of imprisonment for a felony shall be a definite term of years and the person sentenced, unless otherwise provided by law, shall be committed to the custody of the state department of corrections.
B. No prisoner may be transferred to the custody of the state department of corrections without a certified copy of the judgment and sentence, signed by the sentencing judge, and a copy of a recent presentence investigation report unless the court has waived preparation of the report.
C. The minimum or maximum term imposed pursuant to section 13‑702, 13‑703, 13‑704, 13‑705, 13‑708, 13‑710, 13‑1406, 13‑3212 or 13‑3419 may be imposed only if one or more of the circumstances alleged to be in aggravation of the crime are found to be true by the trier of fact beyond a reasonable doubt or are admitted by the defendant, except that an alleged aggravating circumstance under subsection D, paragraph 11 of this section shall be found to be true by the court, or in mitigation of the crime are found to be true by the court, on any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial, and factual findings and reasons in support of such findings are set forth on the record at the time of sentencing.
D. For the purpose of determining the sentence pursuant to subsection C of this section, the trier of fact shall determine and the court shall consider the following aggravating circumstances, except that the court shall determine an aggravating circumstance under paragraph 11 of this subsection:
1. Infliction or threatened infliction of serious physical injury, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under section 13‑704.
2. Use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime, except if this circumstance is an essential element of the offense of conviction or has been utilized to enhance the range of punishment under section 13‑704.
3. If the offense involves the taking of or damage to property, the value of the property taken or damaged.
4. Presence of an accomplice.
5. Especially heinous, cruel or depraved manner in which the offense was committed.
6. The defendant committed the offense as consideration for the receipt, or in the expectation of the receipt, of anything of pecuniary value.
7. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
8. At the time of the commission of the offense, the defendant was a public servant and the offense involved conduct directly related to the defendant's office or employment.
9. The victim or, if the victim has died as a result of the conduct of the defendant, the victim's immediate family suffered physical, emotional or financial harm.
10. During the course of the commission of the offense, the death of an unborn child at any stage of its development occurred.
11. The defendant was previously convicted of a felony within the ten years immediately preceding the date of the offense. A conviction outside the jurisdiction of this state for an offense that if committed in this state would be punishable as a felony is a felony conviction for the purposes of this paragraph.
12. The defendant was wearing body armor as defined in section 13‑3116.
13. The victim of the offense is at least sixty‑five years of age or is a person with a disability as defined in section 38‑492, subsection B.
14. The defendant was appointed pursuant to title 14 as a fiduciary and the offense involved conduct directly related to the defendant's duties to the victim as fiduciary.
15. Evidence that the defendant committed the crime out of malice toward a victim because of the victim's identity in a group listed in section 41‑1750, subsection A, paragraph 3 or because of the defendant's perception of the victim's identity in a group listed in section 41‑1750, subsection A, paragraph 3.
16. The defendant was convicted of a violation of section 13‑1102, section 13‑1103, section 13‑1104, subsection A, paragraph 3 or section 13‑1204, subsection A, paragraph 1 or 2 arising from an act that was committed while driving a motor vehicle and the defendant's alcohol concentration at the time of committing the offense was 0.15 or more. For the purposes of this paragraph, "alcohol concentration" has the same meaning prescribed in section 28‑101.
17. Lying in wait for the victim or ambushing the victim during the commission of any felony.
18. The offense was committed in the presence of a child and any of the circumstances exists that are set forth in section 13‑3601, subsection A.
19. The offense was committed in retaliation for a victim either reporting criminal activity or being involved in an organization, other than a law enforcement agency, that is established for the purpose of reporting or preventing criminal activity.
20. The defendant was impersonating a peace officer as defined in section 1‑215.
21. The defendant was in violation of 8 United States Code section 1323, 1324, 1325, 1326 or 1328 at the time of the commission of the offense.
22. The defendant used a remote stun gun or an authorized remote stun gun in the commission of the offense. For the purposes of this paragraph:
(a) "Authorized remote stun gun" means a remote stun gun that has all of the following:
(i) An electrical discharge that is less than one hundred thousand volts and less than nine joules of energy per pulse.
(ii) A serial or identification number on all projectiles that are discharged from the remote stun gun.
(iii) An identification and tracking system that, on deployment of remote electrodes, disperses coded material that is traceable to the purchaser through records that are kept by the manufacturer on all remote stun guns and all individual cartridges sold.
(iv) A training program that is offered by the manufacturer.
(b) "Remote stun gun" means an electronic device that emits an electrical charge and that is designed and primarily employed to incapacitate a person or animal either through contact with electrodes on the device itself or remotely through wired probes that are attached to the device or through a spark, plasma, ionization or other conductive means emitting from the device.
23. During or immediately following the commission of the offense, the defendant committed a violation of section 28‑661, 28‑662 or 28‑663.
24. The defendant was convicted of a violation of section 13‑1307 or 13‑1308 or section 13‑3212, subsection A, paragraph 9 or 10 and the defendant recruited, enticed or obtained the victim from a shelter that is designed to serve runaway youth, foster children, homeless persons or victims of human trafficking, domestic violence or sexual assault.
25. The defendant was convicted of a violation of section 13‑1204 and there is evidence that the defendant committed the crime out of malice toward a victim because of the victim's employment as a peace officer.
26. Any other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime.
E. For the purpose of determining the sentence pursuant to subsection C of this section, the court shall consider the following mitigating circumstances:
1. The age of the defendant.
2. The defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
3. The defendant was under unusual or substantial duress, although not to a degree that would constitute a defense to prosecution.
4. The degree of the defendant's participation in the crime was minor, although not so minor as to constitute a defense to prosecution.
5. During or immediately following the commission of the offense, the defendant complied with all duties imposed under sections 28‑661, 28‑662 and 28‑663.
6. Any other factor that is relevant to the defendant's character or background or to the nature or circumstances of the crime and that the court finds to be mitigating.
F. If the trier of fact finds at least one aggravating circumstance, the trial court may find by a preponderance of the evidence additional aggravating circumstances. In determining what sentence to impose, the court shall take into account the amount of aggravating circumstances and whether the amount of mitigating circumstances is sufficiently substantial to justify the lesser term. If the trier of fact finds aggravating circumstances and the court does not find any mitigating circumstances, the court shall impose an aggravated sentence.
G. The court in imposing a sentence shall consider the evidence and opinions presented by the victim or the victim's immediate family at any aggravation or mitigation proceeding or in the presentence report.
H. This section does not affect any provision of law that imposes the death penalty, that expressly provides for imprisonment for life or that authorizes or restricts the granting of probation and suspending the execution of sentence.
I. The intentional failure by the court to impose the mandatory sentences or probation conditions provided in this title is malfeasance.
J. For the purposes of this section, "trier of fact" means a jury, unless the defendant and the state waive a jury in which case the trier of fact means the court.
Sec. 3. Section 13-706, Arizona Revised Statutes, is amended to read:
13-706. Serious, violent or aggravated offenders; sentencing; life imprisonment; definitions
A. A person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a serious offense except a drug offense, first degree murder or any dangerous crime against children as defined in section 13‑705, whether a completed or preparatory offense, and who has previously been convicted of two or more serious offenses not committed on the same occasion shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis, except as specifically authorized by section 31‑233, subsection A or B, until the person has served at least twenty-five years or the sentence is commuted.
B. Unless a longer term of imprisonment or death is the prescribed penalty and notwithstanding any provision that establishes a shorter term of imprisonment, a person who has been convicted of committing or attempting or conspiring to commit any violent or aggravated felony and who has previously been convicted on separate occasions of two or more violent or aggravated felonies not committed on the same occasion shall be sentenced to imprisonment for life and is not eligible for suspension of sentence, probation, pardon or release on any basis except that the person may be eligible for commutation after the person has served at least thirty‑five years.
C. In order for the penalty under subsection B of this section to apply, both of the following must occur:
1. The aggravated or violent felonies that comprise the prior convictions shall have been entered within fifteen years of the conviction for the third offense, not including time spent in custody or on probation for an offense or while the person is an absconder.
2. The sentence for the first aggravated or violent felony conviction shall have been imposed before the conduct occurred that gave rise to the second conviction, and the sentence for the second aggravated or violent felony conviction shall have been imposed before the conduct occurred that gave rise to the third conviction.
D. Chapter 3 of this title applies to all offenses under this section.
E. For the purposes of this section, if a person has been convicted of an offense committed in another jurisdiction that if committed in this state would be a violation or attempted violation of any of the offenses listed in this section and that has the same elements of an offense listed in this section, the offense committed in another jurisdiction is considered an offense committed in this state.
F. For the purposes of this section:
1. "Serious offense" means any of the following offenses if committed in this state or any offense committed outside this state that if committed in this state would constitute one of the following offenses:
(a) First degree murder.
(b) Second degree murder.
(c) Manslaughter.
(d) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
(e) Sexual assault.
(f) Any dangerous crime against children.
(g) Arson of an occupied structure.
(h) Armed robbery.
(i) Burglary in the first degree.
(j) Kidnapping.
(k) Sexual conduct with a minor under fifteen years of age.
(l) Child sex trafficking.
2. "Violent or aggravated felony" means any of the following offenses:
(a) First degree murder.
(b) Second degree murder.
(c) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
(d) Dangerous or deadly assault by prisoner.
(e) Committing assault with intent to incite to riot or participate in riot.
(f) Drive by shooting.
(g) Discharging a firearm at a residential structure if the structure is occupied.
(h) Kidnapping.
(i) Sexual conduct with a minor that is a class 2 felony.
(j) Sexual assault.
(k) Molestation of a child.
(l) Continuous sexual abuse of a child.
(m) Violent sexual assault.
(n) Burglary in the first degree committed in a residential structure if the structure is occupied.
(o) Arson of an occupied structure.
(p) Arson of an occupied jail or prison facility.
(q) Armed robbery.
(r) Participating in or assisting a criminal syndicate or leading or participating in a criminal street gang.
(s) Terrorism.
(t) Taking a child for the purpose of prostitution.
(u) Child sex trafficking.
(v) Commercial sexual exploitation of a minor.
(w) Sexual exploitation of a minor.
(x) Unlawful introduction of disease or parasite as prescribed by section 13‑2912, subsection A, paragraph 2 or 3.
Sec. 4. Heading change
The chapter heading of title 13, chapter 7.1, Arizona Revised Statutes, is changed from "CAPITAL SENTENCING" to "LIFE IMPRISONMENT".
Sec. 5. Section 13-751, Arizona Revised Statutes, is amended to read:
13-751. Sentence of life or natural life imprisonment; victims' rights
A. If the state has filed a notice of intent to seek the death penalty and the a defendant is:
1. Convicted
of first degree murder pursuant to section 13‑1105, subsection A,
paragraph 1 or 3 and was at least eighteen years of age at the time of the
commission of the offense, the defendant shall be sentenced to death or imprisonment in the custody of the state
department of corrections for natural life as determined and in accordance
with the procedures provided in section 13‑752. A
The
court shall order that the defendant not be released on any basis for the
remainder of the defendant's natural life, and the
defendant who is sentenced to
natural life
is not eligible for commutation, parole, work furlough, work release or release
from confinement on any basis.
2. Convicted of first degree murder pursuant to section 13‑1105 and was under eighteen years of age at the time of the commission of the offense, the defendant shall be sentenced to imprisonment in the custody of the state department of corrections for life or natural life, as determined and in accordance with the procedures provided in section 13‑752. If the court imposes a natural life sentence, the court shall order that the defendant not be released on any basis for the remainder of the defendant's natural life. A defendant who is sentenced to natural life is not eligible for commutation, parole, work furlough, work release or release from confinement on any basis. If the defendant is sentenced to life, the defendant shall not be released on any basis until the completion of the service of twenty‑five calendar years if the murdered person was fifteen or more years of age and thirty-five years if the murdered person was under fifteen years of age or was an unborn child.
3. Convicted of first degree murder pursuant to section 13‑1105, subsection A, paragraph 2, the defendant shall be sentenced to death or imprisonment in the custody of the state department of corrections for life or natural life as determined and in accordance with the procedures provided in section 13‑752. If the court imposes a natural life sentence, the court shall order that the defendant not be released on any basis for the remainder of the defendant's natural life. A defendant who is sentenced to natural life is not eligible for commutation, parole, work furlough, work release or release from confinement on any basis. If the defendant is sentenced to life, the defendant shall not be released on any basis until the completion of the service of twenty-five calendar years if the murdered person was fifteen or more years of age and thirty-five years if the murdered person was under fifteen years of age or was an unborn child.
B. At the aggravation phase of the sentencing proceeding that is held pursuant to section 13‑752, the admissibility of information relevant to any of the aggravating circumstances set forth in subsection F of this section shall be governed by the rules of evidence applicable to criminal trials. The burden of establishing the existence of any of the aggravating circumstances set forth in subsection F of this section is on the prosecution. The prosecution must prove the existence of the aggravating circumstances beyond a reasonable doubt.
C. At the penalty phase of the sentencing proceeding that is held pursuant to section 13‑752, the prosecution or the defendant may present any information that is relevant to any of the mitigating circumstances included in subsection G of this section, regardless of its admissibility under the rules governing admission of evidence at criminal trials. The burden of establishing the existence of the mitigating circumstances included in subsection G of this section is on the defendant. The defendant must prove the existence of the mitigating circumstances by a preponderance of the evidence. If the trier of fact is a jury, the jurors do not have to agree unanimously that a mitigating circumstance has been proven to exist. Each juror may consider any mitigating circumstance found by that juror in determining the appropriate penalty.
D. Evidence that is admitted at the trial and that relates to any aggravating or mitigating circumstances shall be deemed admitted as evidence at a sentencing proceeding if the trier of fact considering that evidence is the same trier of fact that determined the defendant's guilt. The prosecution and the defendant shall be permitted to rebut any information received at the aggravation or penalty phase of the sentencing proceeding and shall be given fair opportunity to present argument as to whether the information is sufficient to establish the existence of any of the circumstances included in subsections F and G of this section.
E. In determining whether to impose a sentence of death or life imprisonment, the trier of fact shall take into account the aggravating and mitigating circumstances that have been proven. The trier of fact shall impose a sentence of death if the trier of fact finds one or more of the aggravating circumstances enumerated in subsection F of this section and then determines that there are no mitigating circumstances sufficiently substantial to call for leniency.
F. The trier of fact shall consider the following aggravating circumstances in determining whether to impose a sentence of death:
1. The defendant has been convicted of another offense in the United States for which under Arizona law a sentence of life imprisonment or death was imposable.
2. The defendant has been or was previously convicted of a serious offense, whether preparatory or completed. Convictions for serious offenses committed on the same occasion as the homicide, or not committed on the same occasion but consolidated for trial with the homicide, shall be treated as a serious offense under this paragraph.
3. In the commission of the offense the defendant knowingly created a grave risk of death to another person or persons in addition to the person murdered during the commission of the offense.
4. The defendant procured the commission of the offense by payment, or promise of payment, of anything of pecuniary value.
5. The defendant committed the offense as consideration for the receipt, or in expectation of the receipt, of anything of pecuniary value.
6. The defendant committed the offense in an especially heinous, cruel or depraved manner.
7. The defendant committed the offense while:
(a) In the custody of or on authorized or unauthorized release from the state department of corrections, a law enforcement agency or a county or city jail.
(b) On probation for a felony offense.
8. The defendant has been convicted of one or more other homicides, as defined in section 13‑1101, that were committed during the commission of the offense.
9. The defendant was an adult at the time the offense was committed or was tried as an adult and the murdered person was under fifteen years of age, was an unborn child in the womb at any stage of its development or was seventy years of age or older.
10. The murdered person was an on duty peace officer who was killed in the course of performing the officer's official duties and the defendant knew, or should have known, that the murdered person was a peace officer.
11. The defendant committed the offense with the intent to promote, further or assist the objectives of a criminal street gang or criminal syndicate or to join a criminal street gang or criminal syndicate.
12. The defendant committed the offense to prevent a person's cooperation with an official law enforcement investigation, to prevent a person's testimony in a court proceeding, in retaliation for a person's cooperation with an official law enforcement investigation or in retaliation for a person's testimony in a court proceeding.
13. The offense was committed in a cold, calculated manner without pretense of moral or legal justification.
14. The defendant used a remote stun gun or an authorized remote stun gun in the commission of the offense. For the purposes of this paragraph:
(a) "Authorized remote stun gun" means a remote stun gun that has all of the following:
(i) An electrical discharge that is less than one hundred thousand volts and less than nine joules of energy per pulse.
(ii) A serial or identification number on all projectiles that are discharged from the remote stun gun.
(iii) An identification and tracking system that, on deployment of remote electrodes, disperses coded material that is traceable to the purchaser through records that are kept by the manufacturer on all remote stun guns and all individual cartridges sold.
(iv) A training program that is offered by the manufacturer.
(b) "Remote stun gun" means an electronic device that emits an electrical charge and that is designed and primarily employed to incapacitate a person or animal either through contact with electrodes on the device itself or remotely through wired probes that are attached to the device or through a spark, plasma, ionization or other conductive means emitting from the device.
G. The trier of fact shall consider as mitigating circumstances any factors proffered by the defendant or the state that are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character, propensities or record and any of the circumstances of the offense, including but not limited to the following:
1. The defendant's capacity to appreciate the wrongfulness of his conduct or to conform his conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution.
2. The defendant was under unusual and substantial duress, although not such as to constitute a defense to prosecution.
3. The defendant was legally accountable for the conduct of another under section 13‑303, but his participation was relatively minor, although not so minor as to constitute a defense to prosecution.
4. The defendant could not reasonably have foreseen that his conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person.
5. The defendant's age.
H. For the purposes of determining whether a conviction of any dangerous crime against children is a serious offense pursuant to this section, an unborn child shall be treated like a minor who is under twelve years of age.
I. In this section, for purposes of punishment an unborn child shall be treated like a minor who is under twelve years of age.
J. For the purposes of this section, "serious offense" means any of the following offenses if committed in this state or any offense committed outside this state that if committed in this state would constitute one of the following offenses:
1. First degree murder.
2. Second degree murder.
3. Manslaughter.
4. Aggravated assault resulting in serious physical injury or committed by the use, threatened use or exhibition of a deadly weapon or dangerous instrument.
5. Sexual assault.
6. Any dangerous crime against children.
7. Arson of an occupied structure.
8. Robbery.
9. Burglary in the first degree.
10. Kidnapping.
11. Sexual conduct with a minor under fifteen years of age.
12. Burglary in the second degree.
13. Terrorism.
B. The victim has the right to be present at any sentencing proceeding and to present any information that is relevant to the proceeding. The victim may present information about the murdered person and the impact of the murder on the victim and other family members and may submit a victim impact statement in any format. For the purposes of this subsection, "victim" means the murdered person's spouse, parent, child or other lawful representative, except if the spouse, parent, child or other lawful representative is in custody for an offense or is the accused.
Sec. 6. Repeal
Sections 13-752, 13-753, 13-754, 13-755, 13-756, 13-757, 13-758 and 13‑759, Arizona Revised Statutes, are repealed.
Sec. 7. Section 13-1105, Arizona Revised Statutes, is amended to read:
13-1105. First degree murder; classification
A. A person commits first degree murder if:
1. Intending or knowing that the person's conduct will cause death, the person causes the death of another person, including an unborn child, with premeditation or, as a result of causing the death of another person with premeditation, causes the death of an unborn child.
2. Acting either alone or with one or more other persons the person commits or attempts to commit sexual conduct with a minor under section 13‑1405, sexual assault under section 13‑1406, molestation of a child under section 13‑1410, terrorism under section 13‑2308.01, marijuana offenses under section 13‑3405, subsection A, paragraph 4, dangerous drug offenses under section 13‑3407, subsection A, paragraphs 4 and 7, narcotics offenses under section 13‑3408, subsection A, paragraph 7 that equal or exceed the statutory threshold amount for each offense or combination of offenses, involving or using minors in drug offenses under section 13‑3409, drive by shooting under section 13-1209, kidnapping under section 13‑1304, burglary under section 13‑1506, 13‑1507 or 13‑1508, arson under section 13‑1703 or 13‑1704, robbery under section 13‑1902, 13‑1903 or 13‑1904, escape under section 13‑2503 or 13‑2504, child abuse under section 13‑3623, subsection A, paragraph 1 or unlawful flight from a pursuing law enforcement vehicle under section 28‑622.01 and, in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person.
3. Intending or knowing that the person's conduct will cause death to a law enforcement officer, the person causes the death of a law enforcement officer who is in the line of duty.
B. Homicide, as prescribed in subsection A, paragraph 2 of this section, requires no specific mental state other than what is required for the commission of any of the enumerated felonies.
C. An offense under subsection A, paragraph 1 of this section applies to an unborn child in the womb at any stage of its development. A person shall not be prosecuted under subsection A, paragraph 1 of this section if any of the following applies:
1. The person was performing an abortion for which the consent of the pregnant woman, or a person authorized by law to act on the pregnant woman's behalf, has been obtained or for which the consent was implied or authorized by law.
2. The person was performing medical treatment on the pregnant woman or the pregnant woman's unborn child.
3. The person was the unborn child's mother.
D. First degree murder is a class 1 felony and is punishable by death or life or natural life imprisonment as provided by sections section 13-751 and 13‑752.
Sec. 8. Section 13-3841, Arizona Revised Statutes, is amended to read:
13-3841. Definitions
In this article, unless the context otherwise requires:
1. "Charged with crime", "criminal charge" or "criminal offense" includes any of the following:
(a) A felony or misdemeanor offense.
(b) Escape from confinement or the custody of any of the following:
(i) A law enforcement officer.
(ii) A custodial official.
(iii) A custodial agency.
(iv) A custodial institution.
(c) Being accused on a warrant of violating the terms of federal or state supervision.
(d) Being accused of violating bail or conditions of release.
(e) The conviction Being convicted of a crime.
(f) Having an unserved remaining criminal sentence.
(g) Being subject to the death penalty on criminal conviction.
3. 2. "Executive authority" includes the governor, and any person performing the functions of governor in a state other than this state.
2. 3. "Governor" includes any person performing the functions of governor by authority of the law of this state.
4. "State, ", when referring to a state other than this state, means any other state or territory, organized or unorganized, of the United States.
Sec. 9. Section 13-3859.02, Arizona Revised Statutes, is amended to read:
13-3859.02. Imprisonment; alternative methods of extradition
If after a local criminal prosecution a fugitive defendant is sentenced to serve a term of imprisonment in a correctional facility or a county jail, the court shall vacate the fugitive proceedings and shall exonerate the fugitive bond. After the proceedings are vacated and the bond is exonerated, except for death penalty cases, sections 31‑481 and 31‑482 apply. If sections 31‑481 and 31‑482 do not apply, the fugitive matter is governed by any other applicable procedure for the rendition or extradition of fugitives, subject to section 13‑3859. The defendant's fugitive status is not extinguished by the sentence of imprisonment.
Sec. 10. Section 13-3870, Arizona Revised Statutes, is amended to read:
13-3870. Executive agreements
A. If this state wishes to obtain custody of a person who is charged in this state with a criminal offense and the person was convicted or is imprisoned or held under criminal proceedings then pending against him in another state, the governor of this state and the executive authority of the other state may agree on the extradition of the person before the criminal proceedings against the person have terminated or the person's sentence has been served in the other state.
B. Any executive agreement entered into pursuant to subsection A of this section shall be conditioned on the return of the person to the other state at this state's expense as soon as the prosecution in this state is terminated, unless the person is sentenced to death under the laws of this state.
C. On demand of the executive authority of another state the governor may surrender a person in this state who was returned to this state pursuant to section 13‑3863 and who has been charged with a criminal offense in the demanding state. The person may be surrendered even if the person left the demanding state involuntarily.
Sec. 11. Section 13-3906, Arizona Revised Statutes, is amended to read:
13-3906. Processing arrestees; citizenship determination; notice
A. Within twenty-four hours after a person is brought to a law enforcement agency for incarceration, the law enforcement agency shall inquire of the person and determine that person's country of citizenship. If the person is not a United States citizen, the law enforcement agency shall:
1. Notify the person's country of citizenship of the person's detention if the person does not waive notification or if the person's country of citizenship requires notification regardless of the person's waiver of notification.
2. Document the notification to the person's country of citizenship and any waiver of notification.
3. Transmit any information obtained pursuant to this section to the court and the prosecuting agency for the purpose of making a determination pursuant to section 13‑3961, subsection A, paragraph 5 4 or section 13‑3967, subsection B, paragraph 14 or for any other lawful purpose.
B. The failure or inability of a law enforcement agency to provide the notice required by this section does not:
1. Affect the admissibility of any statements, the voluntariness of a guilty plea or the validity of a conviction.
2. Afford a defendant any rights in any proceeding related to deportation, exclusion or denial of naturalization.
Sec. 12. Section 13-3961, Arizona Revised Statutes, is amended to read:
13-3961. Offenses not bailable; purpose; preconviction; exceptions
A. A person who is in custody shall not be admitted to bail if the proof is evident or the presumption great that the person is guilty of the offense charged and the offense charged is one of the following:
1. A capital offense.
2. 1. Sexual assault.
3. 2. Sexual conduct with a minor who is under fifteen years of age.
4. 3. Molestation of a child who is under fifteen years of age.
5. 4. A serious felony offense if there is probable cause to believe that the person has entered or remained in the United States illegally. For the purposes of this paragraph:
(a) The court shall consider all of the following in making a determination that a person has entered or remained in the United States illegally:
(i) Whether a hold has been placed on the arrested person by the United States immigration and customs enforcement.
(ii) Any indication by a law enforcement agency that the person is in the United States illegally.
(iii) Whether an admission by the arrested person has been obtained by the court or a law enforcement agency that the person has entered or remained in the United States illegally.
(iv) Any information received from a law enforcement agency pursuant to section 13‑3906.
(v) Any evidence that the person has recently entered or remained in the United States illegally.
(vi) Any other relevant information that is obtained by the court or that is presented to the court by a party or any other person.
(b) "Serious felony offense" means any class 1, 2, 3 or 4 felony or any violation of section 28‑1383.
B. The purposes of bail and any conditions of release that are set by a judicial officer include:
1. Assuring the appearance of the accused.
2. Protecting against the intimidation of witnesses.
3. Protecting the safety of the victim, any other person or the community.
C. The initial determination of whether an offense is bailable pursuant to subsection A of this section shall be made by the magistrate or judicial officer at the time of the person's initial appearance.
D. Except as provided in subsection A of this section, a person who is in custody shall not be admitted to bail if the person is charged with a felony offense and the state certifies by motion and the court finds after a hearing on the matter that there is clear and convincing evidence that the person charged poses a substantial danger to another person or the community or engaged in conduct constituting a violent offense, that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community and that the proof is evident or the presumption great that the person committed the offense for which the person is charged. For the purposes of this subsection, "violent offense" means either of the following:
1. A dangerous crime against children.
2. Terrorism.
E. On oral motion of the state, the court shall order the hearing required by subsection D of this section at or within twenty‑four hours of the initial appearance unless the person who is subject to detention or the state moves for a continuance. A continuance that is granted on the motion of the person shall not exceed five calendar days unless there are extenuating circumstances. A continuance on the motion of the state shall be granted on good cause shown and shall not exceed twenty‑four hours. The prosecutor shall provide reasonable notice and an opportunity for victims and witnesses to be present and heard at any hearing. The person may be detained pending the hearing. The person is entitled to representation by counsel and is entitled to present information by proffer or otherwise, to testify and to present witnesses in the person's own behalf. Testimony of the person charged that is given during the hearing shall not be admissible on the issue of guilt in any subsequent judicial proceeding, except as it might relate to the compliance with or violation of any condition of release subsequently imposed or the imposition of appropriate sentence or in perjury proceedings, or for the purposes of impeachment. The case of the person shall be placed on an expedited calendar and, consistent with the sound administration of justice, the person's trial shall be given priority. The person may be admitted to bail in accordance with the Arizona rules of criminal procedure whenever a judicial officer finds that a subsequent event has eliminated the basis for detention.
F. The finding of an indictment or the filing of an information does not add to the strength of the proof or the presumption to be drawn.
G. In a hearing pursuant to subsection D of this section, proof that the person is a criminal street gang member may give rise to the inference that the person poses a substantial danger to another person or the community and that no condition or combination of conditions of release may be imposed that will reasonably assure the safety of the other person or the community.
Sec. 13. Repeal
Title 13, chapter 38, article 17, Arizona Revised Statutes, is repealed.
Sec. 14. Section 13-4031, Arizona Revised Statutes, is amended to read:
13-4031. Right of appeal
The state, or any party to a prosecution by indictment, information or complaint, may appeal as prescribed by law and in the manner provided by the arizona rules of criminal procedure, except criminal actions involving crimes for which a sentence of death has actually been imposed may only be appealed to the supreme court.
Sec. 15. Section 13-4033, Arizona Revised Statutes, is amended to read:
13-4033. Appeal by defendant
A. An appeal may be taken by the defendant only from:
1. A final judgment of conviction or verdict of guilty except insane.
2. An order denying a motion for a new trial.
3. An order made after judgment affecting the substantial rights of the party.
4. A sentence on the grounds that it is illegal or excessive.
B. In noncapital cases A defendant may not appeal from a judgment or sentence that is entered pursuant to a plea agreement or an admission to a probation violation.
C. A defendant may not appeal under subsection A, paragraph 1 or 2 if the defendant's absence prevents sentencing from occurring within ninety days after conviction and the defendant fails to prove by clear and convincing evidence at the time of sentencing that the absence was involuntary.
Sec. 16. Section 13-4040, Arizona Revised Statutes, is amended to read:
13-4040. Divestiture of jurisdiction of supreme court after remission of minute entry and decision; exception
After a certified copy of the minute entry and a copy of the decision of the supreme court in a criminal appeal has have been remitted to the trial court from which the appeal was taken, the supreme court shall have no further jurisdiction of the appeal, or of the proceedings thereon. All orders which that may be necessary to carry the decision of the supreme court into effect shall be made by the court to which the copy of the minute entry and the copy of the decision is are remitted, except when a judgment or sentence of death has been affirmed on appeal after the time appointed for the execution of the sentence and the supreme court has fixed a new time for execution and issued a warrant to the director of the department of corrections to execute the sentence at the time designated in the warrant.
Sec. 17. Section 13-4041, Arizona Revised Statutes, is amended to read:
13-4041. Fee of counsel assigned in criminal proceeding or insanity hearing on appeal or in postconviction relief proceedings
A. Except pursuant to subsection G of this section, If counsel is appointed by the court to represent the defendant in either a criminal proceeding or insanity hearing on appeal, the county in which the court from which the appeal is taken presides shall pay counsel, except that in those appeals where the defendant is represented by a public defender or other publicly funded office, the county shall not set or pay compensation shall not be set or paid. Compensation for services rendered on appeal shall be in an amount as the supreme court in its discretion deems reasonable, considering the services performed.
B. After the supreme court has affirmed a defendant's conviction and sentence in a capital case, the supreme court or, if authorized by the supreme court, the presiding judge of the county from which the case originated shall appoint counsel to represent the capital defendant in the state postconviction relief proceeding.
C. The supreme court shall establish and maintain a list of persons who are qualified to represent capital defendants in postconviction proceedings. The supreme court may establish by rule more stringent standards of competency for the appointment of postconviction counsel in capital cases than are provided by this subsection. The supreme court may refuse to certify an attorney on the list who meets the qualifications established under this subsection or may remove an attorney from the list who meets the qualifications established under this subsection if the supreme court determines that the attorney is incapable or unable to adequately represent a capital defendant. The court shall appoint counsel from the list. Counsel who are appointed from the list shall meet the following qualifications:
1. Be a member in good standing of the state bar of Arizona for at least five years immediately preceding the appointment.
2. Have practiced in the area of state criminal appeals or postconviction proceedings for at least three years immediately preceding the appointment.
3. Not previously have represented the capital defendant in the case either in the trial court or in the direct appeal, unless the defendant and counsel expressly request continued representation and waive all potential issues that are foreclosed by continued representation.
D. Before filing a petition, the capital defendant may personally appear before the trial court and waive counsel. If the trial court finds that the waiver is knowing and voluntary, appointed counsel may withdraw. The time limits in which to file a petition shall not be extended due solely to the change from appointed counsel to self‑representation.
E. If at any time the trial court determines that the capital defendant is not indigent, appointed counsel shall no longer be compensated by public monies and may withdraw.
F. Unless counsel is employed by a publicly funded office, counsel appointed to represent a capital defendant in state postconviction relief proceedings shall be paid an hourly rate of not to exceed one hundred dollars per hour. Monies shall not be paid to court appointed counsel unless either:
1. A petition is timely filed.
2. If a petition is not filed, a notice is timely filed stating that counsel has reviewed the record and found no meritorious claim.
G. B. The trial court shall compensate appointed counsel from county funds. The court or the court's designee shall review and approve all reasonable fees and costs. If the attorney believes that the court has set an unreasonably low hourly rate or if the court finds that the hours the attorney spent are unreasonable, the attorney may file a special action with the Arizona supreme court. If counsel is appointed in successive postconviction relief proceedings, compensation shall be paid pursuant to section 13‑4013, subsection A.
H. The county shall request reimbursement for fees it incurs pursuant to subsections F, G and I of this section arising out of the appointment of counsel to represent an indigent capital defendant in a state postconviction relief proceeding. The state shall pay a portion of the fees incurred by the county out of monies appropriated to the supreme court for these purposes. The total amount that may be spent in any fiscal year by this state for indigent capital defense in a state postconviction relief proceeding may not exceed the amount appropriated in the general appropriations act for this purpose, together with additional amounts appropriated by any special legislative appropriation for indigent capital defense. The supreme court shall approve county requests for reimbursement after certification that the amount requested is owed.
I. C. The trial court may authorize additional monies to pay for investigative and expert services that are reasonably necessary to adequately litigate those claims that are not precluded by section 13‑4232.
Sec. 18. Repeal
Section 13-4042, Arizona Revised Statutes, is repealed.
Sec. 19. Section 13-4234, Arizona Revised Statutes, is amended to read:
13-4234. Commencement of proceedings; notice; assignment of judge
A. A proceeding is commenced by timely filing a notice of postconviction relief with the clerk of the court in which the conviction occurred. The clerk of the trial court shall provide notice forms for commencement of first and successive postconviction relief proceedings. The notice shall bear the caption of the original criminal action to which it pertains. The notice in successive postconviction relief proceedings shall comply with section 13‑4232, subsection B. On receipt of the notice, the clerk of the trial court shall file a copy of the notice in the case file of each original action and promptly send copies to the defendant, the defendant's attorney, if known, the county attorney and the attorney general, noting the date and manner of sending the copies in the record. The state shall notify the victim on request.
B. If an appeal of the defendant's conviction or sentence, or both, is pending, the clerk, within five days after the filing of the notice for postconviction relief, shall send a copy of the notice to the appropriate appellate court, noting the date and manner of sending the copy in the record.
C. In noncapital cases, The notice shall be filed within ninety days after the judgment and sentence are entered or within thirty days after the order and mandate affirming the judgment and sentence is issued on direct appeal, whichever is later. A defendant has sixty days from the filing of the notice in which to file a petition. On the filing of a successive notice, a defendant has thirty days from the filing of the notice in which to file a petition.
D. In capital cases, on the issuance of a mandate affirming the defendant's conviction and sentence on direct appeal, the clerk of the supreme court expeditiously shall file a notice of postconviction relief with the trial court. On the first notice in capital cases, a defendant has sixty days from the filing of the notice in which to file a petition. The supreme court shall appoint counsel pursuant to section 13‑4041, subsection B. All indigent state prisoners under a capital sentence are entitled to the appointment of counsel to represent them in state postconviction proceedings. A competent indigent defendant may reject the offer of counsel with an understanding of its legal consequence. On successive notice in capital cases, the trial court shall appoint the previous postconviction relief counsel of the capital defendant unless counsel is waived pursuant to section 13‑4041, subsection D or good cause exists to appoint another qualified attorney pursuant to section 13‑4041, subsection B. On the filing of a successive notice, a capital defendant or an appointed attorney has thirty days from the filing of the notice in which to file a petition.
E. D. A defendant who has pled guilty and who is precluded from filing a direct appeal pursuant to section 13‑4033 may be granted an additional thirty day extension of time in which to file the petition if the defendant's counsel refuses to raise issues and leaves the defendant insufficient time to file a petition within the time limits.
F. E. On a specific and detailed
showing of good cause, a defendant in a noncapital case may be granted up to a sixty day
extension of time in which to file the petition. On a specific and detailed showing of good cause, a defendant
in a capital case may be granted one thirty day extension of time in which to
file the petition.
G. F. The time
limits are jurisdictional, and an untimely filed notice or petition shall be
dismissed with prejudice.
H. G. If the record
of the trial proceeding has not been transcribed, the defendant may request on
a form provided by the clerk of the superior court that the record be
prepared. The court shall order that those portions of the record be
prepared that it deems necessary to resolve the issues to be raised in the
petition. The preparation of the record is a county expense if the
defendant is indigent. The time for filing the petition is tolled
from the time a request for the record is made until the record is prepared or
the request is denied.
I. H. The proceeding
shall be assigned to the sentencing judge if it is possible. If it
appears that the sentencing judge's testimony is relevant, the sentencing judge
shall transfer the case to another judge.
J. If the defendant has received a sentence of death and the supreme court has fixed the time for execution of the sentence, a stay of execution shall not be granted on the filing of a second or subsequent petition except on separate application for a stay to the supreme court setting forth with particularity those issues raised which are not precluded under section 13‑4232. The warrant shall not be stayed to allow for the filing of a petition.
Sec. 20. Repeal
Section 13-4234.01, Arizona Revised Statutes, is repealed.
Sec. 21. Section 21-102, Arizona Revised Statutes, is amended to read:
21-102. Juries; size; degree of unanimity required; waiver
A. A jury for trial of a criminal case in which a sentence of death or imprisonment for thirty years or more is authorized by law shall consist of twelve persons, and the concurrence of all shall be necessary to render a verdict.
B. A jury for trial in any court of record of any other criminal case shall consist of eight persons, and the concurrence of all shall be necessary to render a verdict.
C. A jury for trial in any court of record of a civil case shall consist of eight persons, and the concurrence of all but two shall be necessary to render a verdict.
D. In a court not of record, a jury for trial of any case shall consist of six persons. The concurrence of all in a criminal case and all but one in a civil case shall be necessary to render a verdict.
E. The parties in a civil case, and the parties with the consent of the court in a criminal case, may waive trial by jury, or at any time before a verdict is returned consent to try the case with or receive a verdict concurred in by a lesser number of jurors than that specified above.
Sec. 22. Section 31-240, Arizona Revised Statutes, is amended to read:
31-240. Prisoner education services budget; prohibited uses
A. The director shall establish and maintain a dedicated prisoner education services budget for each state prison to identify the monies appropriated to the department and expended for the following education programs:
1. The functional literacy program established pursuant to section 31‑229.
2. Adult basic education.
3. General equivalency diploma preparation.
4. Vocational and technical education.
B. The director shall determine the amount of the education services budget monies that are allocated for education programs dedicated to prisoners incarcerated in a special management unit.
C. The director shall not spend the education services budget monies for education programs dedicated to prisoners who are sentenced to death or life imprisonment or who are classified as maximum custody.
D. Subsection C of this section does not apply to prisoners who are under eighteen years of age and prisoners with disabilities who are under twenty‑two years of age.
Sec. 23. Section 31-403, Arizona Revised Statutes, is amended to read:
31-403. Commutation; restrictions on consideration
A. A person who is otherwise eligible for commutation and who is denied a commutation of sentence recommendation shall not petition or be considered by the board for commutation of that sentence for a period of five years following the date of the board's denial of the commutation recommendation if the offense for which the commutation recommendation was denied involved any of the following:
1. Death in violation of section 13‑1104 or 13‑1105.
2. Serious physical injury if the person was sentenced pursuant to section 13-704.
3. A dangerous crime against children as defined in section 13‑705.
4. A felony offense in violation of title 13, chapter 14 or 35.1.
B. Notwithstanding subsection A, paragraph 2 of this section, if, in its sole discretion, the board determines that the person committed an offense that involved serious physical injury as defined in section 13‑105 and that the person was not sentenced pursuant to section 13‑704, the board may order that the person shall not petition or be considered by the board for commutation of that sentence for a period of five years following the date of the board's denial of the commutation recommendation.
C. Notwithstanding subsection A or B of this section, the board, at the time of denial, may lengthen the five year period of time prescribed in subsection A or B of this section to a period of up to ten years, except that if the offense for which commutation was denied involved a violation of an offense listed in subsection A, paragraph 1 of this section, the board may lengthen the period of time to a period of time that is greater than ten years and that is specified by the board by one of the following votes:
1. A majority affirmative vote if four or more members consider the action.
2. A unanimous affirmative vote if three members consider the action.
3. A unanimous affirmative vote if two members consider the action pursuant to section 31‑401, subsection I and the chairman concurs after reviewing the information considered by the two members. If the chairman is one of the two members constituting a two member quorum under section 31‑401, subsection I, and both the chairman and the other member vote to lengthen the five year period to a period of time greater than ten years, no further action shall be taken and the decision on whether to lengthen the five year period shall be considered by the board at a meeting at which at least three members are present and voting.
D. The board may waive the provisions of subsections A, B and C of this section if any of the following applies:
1. The person is in imminent danger of death due to a medical condition, as determined by the board.
2. The person is the subject of a warrant of execution.
3. 2. The sentence for which commutation is sought is the subject of a special order issued by the court pursuant to section 13‑603, subsection L.
E. This section applies only to offenses that are committed on or after January 1, 2006.
Sec. 24. Section 31-445, Arizona Revised Statutes, is amended to read:
31-445. Publication of reasons for granting a commutation, pardon or reprieve
When the governor grants a commutation, pardon, reprieve or stay or suspends execution of sentence in a case where a sentence of death is imposed, he shall, Within ten days after granting the A commutation, pardon, or reprieve, or stay or suspension of execution, cause to be published the governor shall publish in bold type, in a newspaper of general circulation, that is published in the county where the conviction was had, and shall file with the secretary of state for publication in the Arizona administrative register, a statement setting forth his the governor's reasons for granting the commutation, pardon, or reprieve or for staying or suspending such execution. A further reprieve shall not be granted except upon on the same procedure.
Sec. 25. Death sentences; commutation
The supreme court shall remand each case in which a sentence of death was imposed before the effective date of this act to the court in the county in which the sentence of death was imposed and that court shall strike the sentence of death and enter in its place a sentence of natural life. An order sentencing a prisoner to natural life is not subject to commutation, parole, community supervision, work furlough or work release.
