Bill Text: CA SB459 | 2019-2020 | Regular Session | Amended

California Senate Bill 459 (Prior Session Legislation)

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

Bill Title: Crimes: rape: great bodily injury.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Passed) 2019-10-08 - Chaptered by Secretary of State. Chapter 646, Statutes of 2019. [SB459 Detail]

Download: California-2019-SB459-Amended.html

Amended IN Senate March 26, 2019

CALIFORNIA LEGISLATURE— 2019–2020 REGULAR SESSION

Senate Bill

No. 459

Introduced by Senator Galgiani

February 21, 2019

~~An act to amend Section 667.5 of the Penal Code, relating to violent felonies.~~ An act to amend Sections 12022.7 and 12022.8 of the Penal Code, relating to crimes.

LEGISLATIVE COUNSEL'S DIGEST

SB 459, as amended, Galgiani. ~~Violent felonies.~~ Crimes: rape: great bodily injury.

Existing law generally imposes an additional and consecutive term of 3 years imprisonment in the state prison on a person who personally inflicts great bodily injury on a person in the commission of a felony. Existing law imposes a 5-year enhancement on the sentence of a person who inflicts great bodily injury during the commission of a rape if the act was committed by use of force, violence, duress, menace, fear of immediate and unlawful bodily injury on the person or another, if the act was accomplished against the victim’s will by threatening to retaliate in the future against the victim or another person, or if the victim was not the perpetrator’s spouse and was prevented from resisting by any intoxicating or anesthetic substance, or a controlled substance.
This bill would make the 5-year sentence enhancement for the infliction of great bodily injury applicable to all forms of rape. The bill would also define “great bodily injury” for purposes of these sentence enhancements to include impregnation as a result of sexual intercourse that violates any law. By increasing the punishment for crimes, this bill would impose a state-mandated local program.
The California Constitution requires the state to reimburse local agencies and school districts for certain costs mandated by the state. Statutory provisions establish procedures for making that reimbursement.
This bill would provide that no reimbursement is required by this act for a specified reason.
Existing law classifies certain felonies as violent felonies for purposes of various provisions of the Penal Code. Existing law imposes an additional one-year term for a felony and a 3-year term for a violent felony for each prior separate prison term served for a violent felony.
~~This bill would make technical, nonsubstantive changes to these provisions.~~

Vote: MAJORITY Appropriation: NO Fiscal Committee: NOYES Local Program: NOYES

The people of the State of California do enact as follows:

SECTION 1.

Section 12022.7 of the Penal Code is amended to read:

12022.7.

(a) ~~Any~~ A person who personally inflicts great bodily injury on ~~any~~ a person other than an accomplice in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three years.

(b) ~~Any~~ A person who personally inflicts great bodily injury on ~~any~~ a person other than an accomplice in the commission of a felony or attempted felony which causes the victim to become comatose due to brain injury or to suffer paralysis of a permanent nature shall be punished by an additional and consecutive term of imprisonment in the state prison for five years. As used in this subdivision, “paralysis” means a major or complete loss of motor function resulting from injury to the nervous system or to a muscular mechanism.

(c) ~~Any~~ A person who personally inflicts great bodily injury on a person who is 70 years of age or older, other than an accomplice, in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for five years.

(d) ~~Any~~ A person who personally inflicts great bodily injury on a child under the age of five years in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for four, five, or six years.

(e) ~~Any~~ A person who personally inflicts great bodily injury under circumstances involving domestic violence in the commission of a felony or attempted felony shall be punished by an additional and consecutive term of imprisonment in the state prison for three, four, or five years. As used in this subdivision, “domestic violence” has the meaning provided in subdivision (b) of Section 13700.

(f) As used in this section, “great bodily injury” means a significant or substantial physical ~~injury.~~ injury, including, but limited to, impregnation as a result of sexual intercourse that violates any law.

(g) This section shall not apply to murder or manslaughter or a violation of Section 451 or 452. Subdivisions (a), (b), (c), and (d) shall not apply if infliction of great bodily injury is an element of the offense.

(h) The court shall impose the additional terms of imprisonment under either subdivision (a), (b), (c), or (d), but may not impose more than one of those terms for the same offense.

SEC. 2.

Section 12022.8 of the Penal Code is amended to read:

12022.8.

Any person who inflicts great bodily injury, as defined in Section 12022.7, on any victim in a violation of Section 220 involving a specified sexual offense, or a violation or attempted violation of ~~paragraph (2), (3), or (6) of~~ subdivision (a) of Section 261, ~~paragraph (1) or (4) of~~ subdivision (a) of Section 262, Section 264.1, subdivision (b) of Section 288, subdivision (a) of Section 289, or sodomy or oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person as provided in Section 286 or 287, or former Section 288a, shall receive a five-year enhancement for each violation in addition to the sentence provided for the felony conviction.

SEC. 3.
No reimbursement is required by this act pursuant to Section 6 of Article XIII B of the California Constitution because the only costs that may be incurred by a local agency or school district will be incurred because this act creates a new crime or infraction, eliminates a crime or infraction, or changes the penalty for a crime or infraction, within the meaning of Section 17556 of the Government Code, or changes the definition of a crime within the meaning of Section 6 of Article XIII B of the California Constitution.

SECTION 1.Section 667.5 of the Penal Code is amended to read:
667.5.
~~Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:~~
(a)If one of the new offenses is one of the violent felonies specified in subdivision (c), in addition to and consecutive to any other prison terms therefor, the court shall impose a three-year term for each prior separate prison term served by the defendant if the prior offense was one of the violent felonies specified in subdivision (c). However, an additional term shall not be imposed under this subdivision for a prison term served prior to a period of 10 years in which the defendant remained free of both prison custody and the commission of an offense that results in a felony conviction.
(b)Except if subdivision (a) applies, if the new offense is a felony for which a prison sentence or a sentence of imprisonment in a county jail under subdivision (h) of Section 1170 is imposed or is not suspended, in addition and consecutive to any other sentence therefor, the court shall impose a one-year term for each prior separate prison term or county jail term imposed under subdivision (h) of Section 1170 or if sentence is not suspended for a felony. An additional term shall not be imposed under this subdivision for a prison term or county jail term imposed under subdivision (h) of Section 1170 or if the sentence is not suspended prior to a period of five years in which the defendant remained free of both the commission of an offense that results in a felony conviction, and prison custody or the imposition of a term of jail custody imposed under subdivision (h) of Section 1170 or a felony sentence that is not suspended. A term imposed under the provisions of paragraph (5) of subdivision (h) of Section 1170, wherein a portion of the term is suspended by the court to allow mandatory supervision, shall qualify as a prior county jail term for the purposes of the one-year enhancement.
(c)The Legislature finds and declares that the crimes specified in this subdivision merit special consideration when imposing a sentence to display society’s condemnation for these extraordinary crimes of violence against the person. For the purpose of this section, “violent felony” shall mean any of the following:
~~(1)Murder or voluntary manslaughter.~~
~~(2)Mayhem.~~
~~(3)Rape as defined in paragraph (2) or (6) of subdivision (a) of Section 261 or paragraph (1) or (4) of subdivision (a) of Section 262.~~
~~(4)Sodomy as defined in subdivision (c) or (d) of Section 286.~~
~~(5)Oral copulation as defined in subdivision (c) or (d) of Section 287 or of former Section 288a.~~
~~(6)Lewd or lascivious act as defined in subdivision (a) or (b) of Section 288.~~
~~(7)Any felony punishable by death or imprisonment in the state prison for life.~~
(8)Any felony in which the defendant inflicts great bodily injury on any person other than an accomplice that has been charged and proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or after July 1, 1977, or as specified prior to July 1, 1977, in Sections 213, 264, and 461, or any felony in which the defendant uses a firearm which use has been charged and proved as provided in subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
~~(9)Any robbery.~~
~~(10)Arson, in violation of subdivision (a) or (b) of Section 451.~~
~~(11)Sexual penetration as defined in subdivision (a) or (j) of Section 289.~~
~~(12)Attempted murder.~~
~~(13)A violation of Section 18745, 18750, or 18755.~~
~~(14)Kidnapping.~~
~~(15)Assault with the intent to commit a specified felony, in violation of Section 220.~~
~~(16)Continuous sexual abuse of a child, in violation of Section 288.5.~~
~~(17)Carjacking, as defined in subdivision (a) of Section 215.~~
~~(18)Rape, spousal rape, or sexual penetration, in concert, in violation of Section 264.1.~~
~~(19)Extortion, as defined in Section 518, that would constitute a felony violation of Section 186.22.~~
~~(20)Threats to victims or witnesses, as defined in Section 136.1, that would constitute a felony violation of Section 186.22.~~
(21)Any burglary of the first degree, as defined in subdivision (a) of Section 460, wherein it is charged and proved that another person, other than an accomplice, was present in the residence during the commission of the burglary.
~~(22)Any violation of Section 12022.53.~~
~~(23)A violation of subdivision (b) or (c) of Section 11418.~~
(d)For the purposes of this section, the defendant shall be deemed to remain in prison custody for an offense until the official discharge from custody, including any period of mandatory supervision, or until release on parole or postrelease community supervision, whichever first occurs, including any time during which the defendant remains subject to reimprisonment or custody in county jail for escape from custody or is reimprisoned on revocation of parole or postrelease community supervision. The additional penalties provided for prior prison terms shall not be imposed unless they are charged and admitted or found true in the action for the new offense.
(e)The additional penalties provided for prior prison terms shall not be imposed for any felony for which the defendant did not serve a prior separate term in state prison or in county jail under subdivision (h) of Section 1170.
(f)A prior conviction of a felony shall include a conviction in another jurisdiction for an offense which, if committed in California, is punishable by imprisonment in the state prison or in county jail under subdivision (h) of Section 1170 if the defendant served one year or more in prison for the offense in the other jurisdiction. A prior conviction of a particular felony shall include a conviction in another jurisdiction for an offense that includes all of the elements of the particular felony as defined under California law if the defendant served one year or more in prison for the offense in the other jurisdiction.
(g)A prior separate prison term for the purposes of this section shall mean a continuous completed period of prison incarceration imposed for the particular offense alone or in combination with concurrent or consecutive sentences for other crimes, including reimprisonment on revocation of parole that is not accompanied by a new commitment to prison, and including reimprisonment after an escape from incarceration.
(h)Serving a prison term includes any confinement time in any state prison or federal penal institution as punishment for commission of an offense, including confinement in a hospital or other institution or facility credited as service of prison time in the jurisdiction of the confinement.
(i)For the purposes of this section, a commitment to the State Department of Mental Health, or its successor the State Department of State Hospitals, as a mentally disordered sex offender following a conviction of a felony, which commitment exceeds one year in duration, shall be deemed a prior prison term.
(j)For the purposes of this section, if a person subject to the custody, control, and discipline of the Secretary of the Department of Corrections and Rehabilitation is incarcerated at a facility operated by the Division of Juvenile Justice, that incarceration shall be deemed to be a term served in state prison.
(k)(1)Notwithstanding subdivisions (d) and (g) or any other law, if one of the new offenses is committed while the defendant is temporarily removed from prison pursuant to Section 2690 or while the defendant is transferred to a community facility pursuant to Section 3416, 6253, or 6263, or while the defendant is on furlough pursuant to Section 6254, the defendant shall be subject to the full enhancements provided for in this section.
~~(2)This subdivision does not apply if a full, separate, and consecutive term is imposed pursuant to any other law.~~