Bill Text: CA AB327 | 2011-2012 | Regular Session | Amended

NOTE: There are more recent revisions of this legislation. Read Latest Draft

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Bill Title: Sentencing: Three Strikes.

Spectrum: Partisan Bill (Democrat 2-0)

Status: (Engrossed - Dead) 2012-05-17 - From committee chair, with author's amendments: Amend, and re-refer to committee. Read second time, amended, and re-referred to Com. on PUB. S. [AB327 Detail]

Download: California-2011-AB327-Amended.html

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BILL NUMBER: AB 327	AMENDED
	BILL TEXT

	AMENDED IN ASSEMBLY  JANUARY 4, 2012

INTRODUCED BY   Assembly Member Davis

                        FEBRUARY 10, 2011

    An act to amend Section 25210.7 of the Health and Safety
Code, relating to hazardous waste.   An act to amend
Sections 667 and 1170.12 of the Penal Code, relating to sentencing.




	LEGISLATIVE COUNSEL'S DIGEST


   AB 327, as amended, Davis.  Hazardous waste: perchlorate.
  Sentencing: three strikes.  
   Existing law, contained in 2 initiative statutes, commonly known
as the Three Strikes law, requires increased penalties for certain
recidivist offenders in addition to any other enhancement or penalty
provisions that may apply. Existing law requires that if a defendant
has 2 or more prior violent or serious felony convictions, the term
for the current felony conviction shall be an indeterminate term of
imprisonment in the state prison for life with a minimum term to be
served, as specified.  
   This bill would provide that a defendant who has 2 or more prior
violent or serious felony convictions shall receive the enhanced
indeterminate life sentence only if the defendant's current
conviction is for a serious or violent felony, as defined.  

   The bill would provide that it would become effective only when
submitted to, and approved by, the voters, and would require the
Secretary of State to submit the measure to the voters at the
November 6, 2012, statewide general election.  
   Existing law, administered by the Department of Toxic Substances
Control, prohibits the management of hazardous waste and a violation
of the hazardous waste control law is a crime. The Perchlorate
Contamination Prevention Act prohibits a person from managing
perchlorate materials, except in compliance with the best management
practices specified in the regulations adopted by the department.
 
   This bill would make nonsubstantive changes and delete obsolete
provisions in that act. 
   Vote: majority. Appropriation: no. Fiscal committee:  no
  yes  . State-mandated local program: no.


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

   SECTION 1.    Section 667 of the   Penal
Code   is amended to read: 
   667.  (a) (1) In compliance with subdivision (b) of Section 1385,
any person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense
committed in another jurisdiction which includes all of the elements
of any serious felony, shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement
for each such prior conviction on charges brought and tried
separately. The terms of the present offense and each enhancement
shall run consecutively.
   (2) This subdivision shall not be applied when the punishment
imposed under other provisions of law would result in a longer term
of imprisonment. There is no requirement of prior incarceration or
commitment for this subdivision to apply.
   (3) The Legislature may increase the length of the enhancement of
sentence provided in this subdivision by a statute passed by majority
vote of each house thereof.
   (4) As used in this subdivision, "serious felony" means a serious
felony listed in subdivision (c) of Section 1192.7.
   (5) This subdivision shall not apply to a person convicted of
selling, furnishing, administering, or giving, or offering to sell,
furnish, administer, or give to a minor any methamphetamine-related
drug or any precursors of methamphetamine unless the prior conviction
was for a serious felony described in subparagraph (24) of
subdivision (c) of Section 1192.7.
   (b) It is the intent of the Legislature in enacting subdivisions
(b) to (i), inclusive, to ensure longer prison sentences and greater
punishment for those who commit a felony and have been previously
convicted of serious and/or violent felony offenses.
   (c) Notwithstanding any other law, if a defendant has been
convicted of a felony and it has been pled and proved that the
defendant has one or more prior felony convictions as defined in
subdivision (d), the court shall adhere to each of the following:
   (1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent felony conviction.
   (2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
   (3) The length of time between the prior felony conviction and the
current felony conviction shall not affect the imposition of
sentence.
   (4) There shall not be a commitment to any other facility other
than the state prison. Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
   (5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
   (6) If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to subdivision (e).
   (7) If there is a current conviction for more than one serious or
violent felony as described in paragraph (6), the court shall impose
the sentence for each conviction consecutive to the sentence for any
other conviction for which the defendant may be consecutively
sentenced in the manner prescribed by law.
   (8) Any sentence imposed pursuant to subdivision (e) will be
imposed consecutive to any other sentence which the defendant is
already serving, unless otherwise provided by law.
   (d) Notwithstanding any other law and for the purposes of
subdivisions (b) to (i), inclusive, a prior conviction of a felony
shall be defined as:
   (1) Any offense defined in subdivision (c) of Section 667.5 as a
violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state. The determination of
whether a prior conviction is a prior felony conviction for purposes
of subdivisions (b) to (i), inclusive, shall be made upon the date of
that prior conviction and is not affected by the sentence imposed
unless the sentence automatically, upon the initial sentencing,
converts the felony to a misdemeanor. None of the following
dispositions shall affect the determination that a prior conviction
is a prior felony for purposes of subdivisions (b) to (i), inclusive:

   (A) The suspension of imposition of judgment or sentence.
   (B) The stay of execution of sentence.
   (C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.

   (D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
   (2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state
prison. A prior conviction of a particular felony shall include a
conviction in another jurisdiction for an offense that includes all
of the elements of the particular felony as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
   (3) A prior juvenile adjudication shall constitute a prior felony
conviction for purposes of sentence enhancement if:
   (A) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
   (B) The prior offense is listed in subdivision (b) of Section 707
of the Welfare and Institutions Code or described in paragraph (1) or
(2) as a felony.
   (C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law.
   (D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
   (e) For purposes of subdivisions (b) to (i), inclusive, and in
addition to any other enhancement or punishment provisions which may
apply, the following shall apply where a defendant has a prior felony
conviction:
   (1) If a defendant has one prior felony conviction  , 
 as defined in subdivision (d)   ,  that has been
pled and proved, the determinate term or minimum term for an
indeterminate term shall be twice the term otherwise provided as
punishment for the current felony conviction.
   (2) (A) If a defendant has two or more prior felony convictions
 ,  as defined in subdivision (d)  ,  that have
been pled and proved, the term for  the   a
 current felony conviction  for an offense defined in
subdivision (c) of Section 667.5 as a violent felony or in
subdivision (c) of Sect   ion 1192.7 as a serious felony
 shall be an indeterminate term of life imprisonment with a
minimum term of the indeterminate sentence calculated as the greater
of:
   (i) Three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions.
   (ii) Imprisonment in the state prison for 25 years.
   (iii) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
   (B) The indeterminate term described in subparagraph (A) shall be
served consecutive to any other term of imprisonment for which a
consecutive term may be imposed by law. Any other term imposed
subsequent to any indeterminate term described in subparagraph (A)
shall not be merged therein but shall commence at the time the person
would otherwise have been released from prison.
   (f) (1) Notwithstanding any other law, subdivisions (b) to (i),
inclusive, shall be applied in every case in which a defendant has a
prior felony conviction as defined in subdivision (d). The
prosecuting attorney shall plead and prove each prior felony
conviction except as provided in paragraph (2).
   (2) The prosecuting attorney may move to dismiss or strike a prior
felony conviction allegation in the furtherance of justice pursuant
to Section 1385, or if there is insufficient evidence to prove the
prior conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior felony conviction, the
court may dismiss or strike the allegation.
   (g) Prior felony convictions shall not be used in plea bargaining
as defined in subdivision (b) of Section 1192.7. The prosecution
shall plead and prove all known prior felony convictions and shall
not enter into any agreement to strike or seek the dismissal of any
prior felony conviction allegation except as provided in paragraph
(2) of subdivision (f).
   (h) All references to existing statutes in subdivisions (c) to
(g), inclusive, are to statutes as they existed on June 30, 1993.
   (i) If any provision of subdivisions (b) to (h), inclusive, or the
application thereof to any person or circumstance is held invalid,
that invalidity shall not affect other provisions or applications of
those subdivisions which can be given effect without the invalid
provision or application, and to this end the provisions of those
subdivisions are severable.
   (j) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
   SEC. 2.    Section 1170.12 of the   Penal
Code   is amended to read: 
   1170.12.  (a) Notwithstanding any other provision of law, if a
defendant has been convicted of a felony and it has been pled and
proved that the defendant has one or more prior felony convictions,
as defined in subdivision (b), the court shall adhere to each of the
following:
   (1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent felony conviction.
   (2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
   (3) The length of time between the prior felony conviction and the
current felony conviction shall not affect the imposition of
sentence.
   (4) There shall not be a commitment to any other facility other
than the state prison. Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
   (5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
   (6) If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to this section.
   (7) If there is a current conviction for more than one serious or
violent felony as described in paragraph (6) of this subdivision, the
court shall impose the sentence for each conviction consecutive to
the sentence for any other conviction for which the defendant may be
consecutively sentenced in the manner prescribed by law.
   (8) Any sentence imposed pursuant to this section will be imposed
consecutive to any other sentence which the defendant is already
serving, unless otherwise provided by law.
   (b) Notwithstanding any other provision of law and for the
purposes of this section, a prior conviction of a felony shall be
defined as:
   (1) Any offense defined in subdivision (c) of Section 667.5 as a
violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state. The determination of
whether a prior conviction is a prior felony conviction for purposes
of this section shall be made upon the date of that prior conviction
and is not affected by the sentence imposed unless the sentence
automatically, upon the initial sentencing, converts the felony to a
misdemeanor. None of the following dispositions shall affect the
determination that a prior conviction is a prior felony for purposes
of this section:
   (A) The suspension of imposition of judgment or sentence.
   (B) The stay of execution of sentence.
   (C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.

   (D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
   (2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state
prison. A prior conviction of a particular felony shall include a
conviction in another jurisdiction for an offense that includes all
of the elements of the particular felony as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
   (3) A prior juvenile adjudication shall constitute a prior felony
conviction for purposes of sentence enhancement if:
   (A) The juvenile was sixteen years of age or older at the time he
or she committed the prior offense, and
   (B) The prior offense is
   (i) listed in subdivision (b) of Section 707 of the Welfare and
Institutions Code, or
   (ii) listed in this subdivision as a felony, and
   (C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law, and
   (D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
   (c) For purposes of this section, and in addition to any other
enhancements or punishment provisions which may apply, the following
shall apply where a defendant has a prior felony conviction:
   (1) If a defendant has one prior felony conviction  , 
 as defined in paragraph (1) of subdivision (b)   ,
 that has been pled and proved, the determinate term or minimum
term for an indeterminate term shall be twice the term otherwise
provided as punishment for the current felony conviction.
   (2) (A) If a defendant has two or more prior felony convictions,
as defined in paragraph (1) of subdivision (b), that have been pled
and proved, the term for the current felony conviction  for an
offense defined in subdivision (c) of Section 667.5 as a violent
felony or in subdivision (c) of Section 1192.7 as a serious felony
 shall be an indeterminate term of life imprisonment with a
minimum term of the indeterminate sentence calculated as the greater
of
   (i) three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions, or
   (ii) twenty-five years or
   (iii) the term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
   (B) The indeterminate term described in subparagraph (A) of
paragraph (2) of this subdivision shall be served consecutive to any
other term of imprisonment for which a consecutive term may be
imposed by law. Any other term imposed subsequent to any
indeterminate term described in subparagraph (A) of paragraph (2) of
this subdivision shall not be merged therein but shall commence at
the time the person would otherwise have been released from prison.
   (d) (1) Notwithstanding any other provision of law, this section
shall be applied in every case in which a defendant has a prior
felony conviction as defined in this section. The prosecuting
attorney shall plead and prove each prior felony conviction except as
provided in paragraph (2).
   (2) The prosecuting attorney may move to dismiss or strike a prior
felony conviction allegation in the furtherance of justice pursuant
to Section 1385, or if there is insufficient evidence to prove the
prior conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior felony conviction, the
court may dismiss or strike the allegation.
   (e) Prior felony convictions shall not be used in plea bargaining,
as defined in subdivision (b) of Section 1192.7. The prosecution
shall plead and prove all known prior felony convictions and shall
not enter into any agreement to strike or seek the dismissal of any
prior felony conviction allegation except as provided in paragraph
(2) of subdivision (d).
   SEC. 3.    (a) Sections 1 and 2 of this act affect
initiative statutes, and shall become effective only when submitted
to, and approved by, the voters of California, pursuant to
subdivision (c) of Section 10 of Article II of the California
Constitution.  
   (b) The Secretary of State shall submit Sections 1 and 2 of this
act to the voters for approval at the November 6, 2012, statewide
general election.  
  SECTION 1.    Section 25210.7 of the Health and
Safety Code is amended to read:
   25210.7.  A person shall not manage perchlorate materials unless
the management complies with the best management practices specified
in the regulations adopted by the department pursuant to Section
25210.6.