THE THREE STRIKES AND CHILD PROTECTION ACT OF 2004
INITIATIVE MEASURE TO BE SUBMITTED DIRECTLY TO THE VOTERS
TO THE HONORABLE SECRETARY OF THE STATE OF CALIFORNIA:
We, the undersigned, registered, qualified voters of the State of California, residents of the afore-described County (or City and County), hereby propose amendments to Penal Code Sections 289, 667, 667.1, 667.5, 1170.12, 1192.7 and 707 of the Welfare and Institutions Code, relating to the sentencing of individuals for a third serious or violent felony after having been convicted of two prior serious or violent felonies, and petition the Secretary of State to submit the same to the voters of California for their adoption or rejection at the next succeeding primary or general election or at any special statewide election held prior to that primary or general election or as otherwise provided by law. The proposed statutory initiative reads as follows:
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. TITLE
This initiative shall be known and may be cited as the Three Strikes and Child Protection Act of 2004.
SECTION 2. FINDINGS AND DECLARATIONS
The People of the State of California do hereby find and declare that:
(a) Proposition 184 (the "3 Strikes" law) was overwhelmingly approved in 1994 with the intent of protecting law-abiding citizens by enhancing the sentences of repeat offenders who commit serious and/or violent felonies;
(b)Proposition 184 did not set reasonable limits to determine what criminal acts to prosecute as a second and/or third strikes;
(c)Since its enactment, Proposition 184 has been used to enhance the sentences of more than 35,000 persons who did not commit a serious and/or violent crime against another person, at a cost to taxpayers of more than eight hundred million dollars ($800,000,000) per year.
SECTION 3. PURPOSES
The People do hereby enact this measure to:
(a) Continue to Protect the People from criminals who commit serious and/or violent crimes;
(b) Ensure greater punishment and longer prison sentences for those who have been previously convicted of serious and/or violent felonies, and who commit another serious and/ or violent felony;
(c) To require that no more than one strike be prosecuted for each criminal act and to conform the burglary and arson statues;
(d) To protect Children from dangerous Sex Offenders and reduce the cost to taxpayers for warehousing offenders who commit crimes that do not qualify increased punishment according to this act.
SECTION 4 SEX OFFENDERS OF CHILDREN
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289.(a) (1) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by means of force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person shall be punished by imprisonment in the state prison for three, six, or eight years.
(2) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to retaliate in the future against the victim or any other person, and there is a reasonable possibility that the perpetrator will execute the threat, shall be punished by imprisonment in the state prison for three, six, or eight years.
(b) Except as provided in subdivision (c), any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably
should be known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for three, six, or eight years. Notwithstanding the
appointment of a conservator with respect to the victim pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the
crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(c) Any person who commits an act of sexual penetration, and the victim is at the time incapable, because of a mental disorder or developmental or physical disability, of giving legal consent, and this is known or reasonably should be known to the person committing
the act or causing the act to be committed and both the defendant and the victim are at the time confined in a state hospital for the care and treatment of the mentally disordered or in any other public or private facility for the care and treatment of the mentally disordered approved by a county mental health director, shall be punished by imprisonment in the state prison, or in a county jail for a period of not more than one year. Notwithstanding the existence of a conservatorship pursuant to the provisions of the Lanterman-Petris-Short Act (Part 1 (commencing with Section 5000) of Division 5 of the Welfare and Institutions Code), the prosecuting attorney shall prove, as an element of the crime, that a mental disorder or developmental or physical disability rendered the alleged victim incapable of giving legal consent.
(d) Any person who commits an act of sexual penetration, and the victim is at the time unconscious of the nature of the act and this is known to the person committing the act or causing the act to be committed, shall be punished by imprisonment in the state prison for
three, six, or eight years. As used in this subdivision, "unconscious of the nature of the act" means incapable of resisting because the victim meets one of the following conditions:
(1) Was unconscious or asleep.
(2) Was not aware, knowing, perceiving, or cognizant that the act occurred.
(3) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraud in fact.
(4) Was not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator's fraudulent representation that the sexual penetration served a professional purpose when it served no professional purpose.
(e) Any person who commits an act of sexual penetration when the victim is prevented from resisting by any intoxicating or anesthetic substance, or any controlled substance, and this condition was known, or reasonably should have been known by the accused, shall be
punished by imprisonment in the state prison for a period of three, six, or eight years.
(f) Any person who commits an act of sexual penetration when the victim submits under the belief that the person committing the act or causing the act to be committed is the victim's spouse, and this belief is induced by any artifice, pretense, or concealment practiced
by the accused, with intent to induce the belief, shall be punished by imprisonment in the state prison for a period of three, six, or eight years.
(g) Any person who commits an act of sexual penetration when the act is accomplished against the victim's will by threatening to use the authority of a public official to incarcerate, arrest, or deport the victim or another, and the victim has a reasonable belief that the perpetrator is a public official, shall be punished by imprisonment in the state prison for a period of three, six, or eight
years.
As used in this subdivision, "public official" means a person employed by a governmental agency who has the authority, as part of that position, to incarcerate, arrest, or deport another. The perpetrator does not actually have to be a public official. (h) Except as provided in Section 288, any person who participates in an act of sexual penetration with another person who is under 18 years of age shall be punished by imprisonment in the state prison or
in the county jail for a period of not more than one year. (i) Except as provided in Section 288, any person over the age of 21 years who participates in an act of sexual penetration with
another person who is under 16 years of age shall be guilty of a felony.
(j)
1) Any person who participates in an act of sexual
penetration or oral copulation with another person who is
under 14 years of age and who is more than 10 years younger than he
or she shall be punished by imprisonment in the state prison for
three, six, or eight
years or twelve years and receive
counseling during the imprisonment and for a period of at least 1
year following release. This counseling shall be structured in a way
so that it does not endanger the prisoners life or safety.
2) A second conviction of this offense, plead and proved separately will result in imprisonment in the state prison for 25-life. If the victim is under the age of ten the on the first offense the prosecution may seek a 25-life sentence, but the court retains discretion to sentence under 289 subdivision (j) 1
(k) As used in this section:
(1) "Sexual penetration" is the act of causing the penetration, however slight, of the genital or anal opening of any person or causing another person to so penetrate the defendant's or another
person's genital or anal opening for the purpose of sexual arousal, gratification, or abuse by any foreign object, substance, instrument, or device, or by any unknown object.
(2) "Foreign object, substance, instrument, or device" shall include any part of the body, except a sexual organ.
(3) "Unknown object" shall include any foreign object, substance, instrument, or device, or any part of the body, including a penis, when it is not known whether penetration was by a penis or by a foreign object, substance, instrument, or device, or by any other part of the body.
(l) As used in subdivision (a), "threatening to retaliate" means a threat to kidnap or falsely imprison, or inflict extreme pain, serious bodily injury or death.
(m) As used in this section, "victim" includes any person who the defendant causes to penetrate the genital or anal opening of the defendant or another person or whose genital or anal opening is caused to be penetrated by the defendant or another person and who otherwise qualifies as a victim under the requirements of this section.
SECTION 5. AMENDMENTS TO SECTION 667 OF THE PENAL CODE
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Section 667. of the Penal Code is hereby amended to read:
(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 any serious felonies listed in subdivision (c) of Section 1192.7 as amended in this act :
(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 subparagraph of subdivision (c) of Section 1192.7.
(b)
It is the intent of the Legislature People
of the State of California in enacting subdivisions (b) to (i),
inclusive, to ensure longer prison sentences and greater punishment
for those who commit a serious and/or violent felony and have
been previously convicted of serious and/or violent felony offenses.
(c) Notwithstanding any other provision of law, if a defendant has been convicted of a serious and/or violent felony and it has been pled and proved that the defendant has one or more prior serious and/or violent felony convictions that were brought and tried separately 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 serious and/or violent 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 serious and/or violent felony conviction and the current serious and/or violent felony conviction shall not affect the imposition of the 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 serious and/or violent felony counts 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 and/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 serious and/or violent felony shall be defined as any of the following:
(1) Any offense defined in subdivision (c) of Section 667.5 as amended in this act as a violent felony or any offense defined in subdivision (c) of Section 1192.7 as amended in this act as a serious felony in this state and the conviction(s) were brought and tried separately. The determination of whether a prior conviction is a prior serious and/or violent 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 serious and/or violent 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 as amended in this act and the conviction(s) were brought and tried separately.
(3) A prior juvenile adjudication shall constitute a prior serious and/or violent felony
conviction for purposes of sentence enhancement if all of the following are true:
(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 described in subdivision (c) Section 667.5 or
described in subdivision 1192.7 as amended by this act or is one of
the following offenses listed in subdivision (b) of Section 707
of the Welfare and Institutions Code or described in
paragraph (1) or (2) as a felony. as amended in this act.
(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 as amended in this act.
(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 serious and/or violent felony conviction:
(1) If a defendant has one prior serious and/or violent felony conviction 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 serious and/or violent felony conviction.
(2)
(A) If a defendant has been convicted of a serious felony
and/or violent, as defined in 667.5, 1192.7 or health and welfare
code 707 as amended in this act and has two or more prior serious
and/or violent felony convictions as defined in subdivision (d)
that have been pled, and proved and that were brought and tried
separately, the term for the current serious and/or violent
felony conviction shall be an indeterminate term of life
imprisonment with a minimum term of the indeterminate sentence
calculated as the greater greatest
of the following:
(I) Three times the term otherwise provided as punishment for each current serious and/or violent felony conviction subsequent to the two or more prior serious and/or violent 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 serious and/or violent felony conviction as defined in subdivision (d). The prosecuting attorney shall plead and prove each prior serious and/or violent 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 amended in this act.
(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 roll call vote entered in the journal, two thirds of the membership concurring, or by a statute that becomes effective only when approved by the electors.
SECTION 6 AMENDMENTS TO 667.1 OF THE PENAL CODE
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667.1.
Notwithstanding subdivision (h) of Section 667,
for all offenses committed on or after the effective date of this
act, all references to existing statutes in subdivisions (c) to (g),
inclusive, of Section 667,
are to those statutes as they are amended by this act existed
on the effective date of this act, including amendments made to those
statutes by this act.
SECTION 7 AMENDMENTS TO 667.5 OF THE PENAL CODE
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667.5. Enhancement of prison terms for new offenses because of prior prison terms shall be imposed as follows:
(a) Where 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 where the prior offense was one of the violent felonies specified in subdivision (c). However, no additional term shall be imposed under this subdivision for any 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 which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is any felony for which a prison sentence is imposed, in addition and consecutive to any other prison terms there for, the court shall impose a one-year term for each prior separate prison term served for any felony; provided that no additional term shall be imposed under this subdivision for any prison term served prior to a period of five years in which the defendant remained free of both prison custody and the commission of an offense which results in a felony conviction.
(c) 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 by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(5) Oral copulation by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(6) Lewd acts on a child under the age of 14 years as defined in Section 288
(7) Any felony punishable on the first conviction by death or imprisonment in the state prison for life.
(8) Any felony in which the defendant specific intends to
personally inflicts great bodily injury
on any person other than an accomplice and in which the
defendant acts to personally inflict great bodily injury on any
person other than an accomplice and which has been charged and
proved as provided for in Section 12022.7 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 personally uses a
firearm which use has been discharged and proved as provided in
Section 12022.5 or 12022.55;
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451;
(11) The offense defined in subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit mayhem, rape, sodomy, or
oral copulation, 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) A violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1(c), which would constitute a felony violation of Section 186.22 of the Penal Code.
(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.
The Legislature finds and declares that these specified crimes merit special consideration when imposing a sentence to display society's condemnation for these extraordinary crimes of violence
against the person.
(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 or until release on parole, whichever first
occurs, including any time during which the defendant remains subject to reimprisonment for escape from custody or is reimprisoned on revocation of parole. 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.
(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 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 which 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 any
reimprisonment on revocation of parole which is not accompanied by a new commitment to prison, and including any 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 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, when a person subject to the custody, control, and discipline of the Director of Corrections is incarcerated at a facility operated by the Department of the Youth Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other provision of law, where 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.
This subdivision shall not apply when a full, separate, and consecutive term is imposed pursuant to any other provision of law.
SECTION 8. AMENDMENTS TO SECTION 1170.12 OF THE PENAL CODE
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Section 1170.12 of the Penal Code is amended to read:
(a) It is the intent of the People of the State of California in enacting subdivisions (b) to (h) ,inclusive , to ensure longer prison sentences and greater punishment for those who commit a serious and/or violent felony and have been previously convicted of serious and/or violent felony offenses.
[(a)]
(b) Notwithstanding any other provision of law, if a
defendant has been convicted of a serious and/or violent
felony and it has been pled, and proved and that
were brought and tried separately that the defendant has been
convicted of one or more prior serious and/or violent felony
convictions, as defined in subdivision the court shall adhere to each
of the following:
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 [violent or serious]
serious and/or violent felony
conviction and the current serious and/or violent 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 serious and/or violent 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, and
(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)]
(c) Notwithstanding any other provision of law and for the
purposes of this section, a prior conviction of a serious and/or
violent felony shall be defined as any offense defined in
subdivision (c) of Section 667.5 or in subdivision (c) of Section
1192.7: as amended in this act.
[(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 serious and/or violent 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 serious and/or violent 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)]
(3) 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 serious and/or
violent felony shall include a conviction in another jurisdiction
for an offense that includes all of the elements of the particular
serious and/or violent felony as defined in this
proposition and that were brought and tried separately.
[(3)]
(4) A prior juvenile adjudication shall constitute a prior
serious and/or violent felony conviction for purposes of
sentence enhancement if all of the following are true:
(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)] described in paragraph (1) or (2) as a serious
and/or violent felony as amended in this proposition , or is one of
the following offense subdivision (b) of Section 707 of the Welfare
and Institutions Code as amended by this act[, 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)] (d) 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 serious and/or violent felony conviction:
(1) If a defendant has one prior serious and/or violent felony conviction 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 serious and/or violent felony conviction.
(2)
(A) If a defendant has been convicted of a serious felony,
as defined in 1192.7 as amended in this act, or a violent felony, as
defined in 667.5 as amended in this act , and has two or more
prior serious and/or violent felony convictions as defined in
667.5,1192.7 or Health and welfare code 707 as amended by this act
subdivision that have been pled, and
proved and that were brought and tried separately the term for
the current serious and/or violent felony conviction shall be
an indeterminate term of life imprisonment with a minimum term of the
indeterminate sentence calculated as the [greater]
greatest of the following:
(I)
[three] Three times the term
otherwise provided as punishment for each current serious and/or
violent felony conviction subsequent to the two or more prior
serious and/or violent felony convictions [,
or].
(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) 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)]
(e) (1) Notwithstanding any other provision of law, this
section shall be applied in every case in which a defendant has a
prior serious and/or violent felony conviction as defined
amended in this section act.
The prosecuting attorney shall plead and prove each prior serious
and/or violent 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)]
(f) 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).
(g) All references to existing statutes in subdivisions (b) to (f), inclusive are to statutes as amended by this act.
(h) If any provision of subdivisions (a) to (g), 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.
SECTION 9 AMENDMENTS TO 1192.7 OF THE PENAL CODE
(This
format presents struck wording in [italics and strikeout}
and new wording in italics.)
1192.7. (a) Plea bargaining in any case in which the indictment or information charges any serious felony, any felony in which it is alleged that a firearm was personally used by the defendant, or any offense of driving while under the influence of alcohol, drugs, narcotics, or any other intoxicating substance, or any combination thereof, is prohibited, unless there is insufficient evidence to prove the people's case, or testimony of a material witness cannot be
obtained, or a reduction or dismissal would not result in a substantial change in sentence.
(b) As used in this section "plea bargaining" means any bargaining, negotiation, or discussion between a criminal defendant, or his or her counsel, and a prosecuting attorney or judge, whereby the defendant agrees to plead guilty or nolo contendere, in exchange for any promises, commitments, concessions, assurances, or consideration by the prosecuting attorney or judge relating to any charge against the defendant or to the sentencing of the defendant.
(c) As used in this section, "serious felony" means any of the following:
Murder or voluntary manslaughter;
Mayhem;
rape;
sodomy by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
oral copulation by force, violence, duress, menace, threat of great bodily injury, or fear of immediate and unlawful bodily injury on the victim or another person;
lewd or lascivious act on a child under the age of 14 years;
any felony which on the first offense is punishable by death or imprisonment in the state prison for life;
any felony in which the defendant specifically intends to personally inflict
sgreat bodily injury on any person, other than an accomplice, and in which the defendant acts to personally inflict great bodily injury on any person other than an accomplice or any felony in which the defendant personally uses a firearm;attempted murder;
assault with intent to commit rape or robbery;
assault with a deadly weapon or instrument on a peace officer;
assault by a life prisoner on a non inmate;
assault with a deadly weapon by an inmate;
(14) arson; as provided in subdivision (a) or (b) of Section 451 of the Penal Code,
(15) exploding a destructive device or any explosive with intent to injure
(16) exploding a destructive device or any explosive causing bodily injury, great bodily injury, or mayhem;
exploding a destructive device or any explosive with intent to murder;
(18) 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.
(19) Armed robbery or bank robbery;
(20) kidnapping;
(21) holding of a hostage by a person confined in a state prison;
(22) attempt to commit a felony punishable by death or imprisonment in the state prison for life;
any felony in which the defendant personally used a dangerous or deadly weapon;
selling, furnishing, administering, giving, or offering to sell, furnish, administer, or give to a minor any heroin, cocaine, phencyclidine (PCP), or any methamphetamine-related drug, as described in paragraph (2) of subdivision (d) of Section 11055 of the Health and Safety Code, or any of the precursors of methamphetamines, as described in subparagraph (A) of paragraph (1) of subdivision (f) of Section 11055 or subdivision (a) of Section11100 of the Health and Safety Code;
(25) any violation of subdivision (a) of Section 289 where the act is accomplished against the victim's will by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person;
grand theft involving a firearm;
carjacking;
Any felony offense, which would also constitute a felony violation of Section 186.22;assault with the intent to commit mayhem, rape, sodomy, or oral copulation, in violation of Section 220;
throwing acid or flammable substances, in violation of Section 244;
assault with a deadly weapon, firearm, machinegun, assault weapon, or semiautomatic firearm or assault on a peace officer or firefighter, in violation of Section 245;
assault with a deadly weapon against a public transit employee, custodial officer, or school employee, in violation of Sections 245.2, 245.3, or 245.5;
discharge of a firearm at an inhabited dwelling, vehicle, or aircraft, in violation of Section 246;
commission of rape or sexual penetration in concert with another person, in violation of Section 264.1;
continuous sexual abuse of a child, in violation of Section 288.5;
shooting from a vehicle, in violation of subdivision (c) or (d) of Section 12034;
intimidation of victims or witnesses, in violation of Section 136.1 c;
criminal threats, in violation of Section 422;any attempt to commit a crime listed in this subdivision other than an assault or burglary
any violation of Section 12022.53;
a violation of subdivision (b) or (c) of Section 11418;
andany conspiracy to commit an offense described in this subdivision, other than assault.
(d) As used in this section, "bank robbery" means to take or attempt to take, by force or violence, or by intimidation from the person or presence of another any property or money or any other
thing of value belonging to, or in the care, custody, control, management, or possession of, any bank, credit union, or any savings and loan association.
As used in this subdivision, the following terms have the following meanings:
(1) "Bank" means any member of the Federal Reserve System, and any bank, banking association, trust company, savings bank, or other banking institution organized or operating under the laws of the United States, and any bank the deposits of which are insured by the
Federal Deposit Insurance Corporation.
(2) "Savings and loan association" means any federal savings and loan association and any "insured institution" as defined in Section 401 of the National Housing Act, as amended, and any federal credit union as defined in Section 2 of the Federal Credit Union Act.
(3) "Credit union" means any federal credit union and any state-chartered credit union the accounts of which are insured by the Administrator of the National Credit Union administration.
(e) 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.
SECTION 10 AMENDMENTS TO SECTION 707 OF THE WELFARE AND INSTITUTIONS CODE
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format presents struck wording in [italics and strikeout}
and new wording in italics.)
707. (a) (1) In any case in which a minor is alleged to be a person described in Section 602 (a) by reason of the violation, when he or she was 16 years of age or older, of any criminal statute or
ordinance except those listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness. Following submission and consideration of the report, and of any other relevant evidence which the petitioner or the minor may wish to submit, the juvenile court may find that the minor is not a fit and proper subject to be dealt with under the juvenile court law if it concludes that the minor would not be amenable to the care, treatment, and training program available through the facilities of the juvenile court, based upon an evaluation of the following criteria:
(1) The degree of criminal sophistication exhibited by the minor.
(2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.
(3) The minor's previous delinquent history.
(4) Success of previous attempts by the juvenile court to rehabilitate the minor.
(5) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor. A determination that the minor is not a fit and proper subject to be dealt with under the juvenile court law may be based on any one or a combination of the factors set forth above, which shall be recited in the order of unfitness. In any case in which a hearing has been
noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing, and no plea which may already have been entered shall
constitute evidence at the hearing.
(2) This paragraph shall apply to a minor alleged to be a person described in Section 602 by reason of the violation, when he or she has attained the age of 16 years, of any felony offense when the minor has been declared to be a ward of the court pursuant to Section
602 on one or more prior occasions if both of the following apply:
(A) The minor has previously been found to have committed two or more felony offenses.
(B) The offenses upon which the prior petition or petitions were based were committed when the minor had attained the age of 14 years.
Upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness. Following submission and consideration of the report, and of any other relevant evidence that the petitioner or the minor may wish to submit, the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances that the minor would be
amenable to the care, treatment, and training program available evaluation of the following criteria:
(A) The degree of criminal sophistication exhibited by the minor.
(B) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.
(C) The minor's previous delinquent history.
(D) Success of previous attempts by the juvenile court to rehabilitate the minor.
(E) The circumstances and gravity of the offense alleged in the petition to have been committed by the minor.
A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefor recited in the order as to each of the above
criteria that the minor is fit and proper under each and every one of the above criteria. In making a finding of fitness, the court may consider extenuating and mitigating circumstances in evaluating each of the above criteria. In any case in which the hearing has been
noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing and no plea which may already have been entered shall
constitute evidence at the hearing. If the minor is found to be a fit and proper subject to be dealt with under the juvenile court law pursuant to this subdivision, the minor shall be committed to
placement in a juvenile hall, ranch camp, forestry camp, boot camp, or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.
(3) If, pursuant to this subdivision, the minor is found to be not a fit and proper subject for juvenile court treatment and is tried in a court of criminal jurisdiction and found guilty by the trier of fact, the judge may commit the minor to the Youth Authority in lieu of sentencing the minor to the state prison, unless the limitations specified in Section 1732.6 apply.
(b) Subdivision (c) shall be applicable in any case in which a minor is alleged to be a person described in Section 602 by reason of the violation, when he or she was 16 years of age or older, of one of the following offenses:
(1) Murder.
(2) Arson, as provided in subdivision (a) or (b) of Section 451 of the Penal Code,
(3) Robbery.
(4) Rape with force or violence or threat of great bodily harm.
(5) Sodomy by force, violence, duress, menace, or threat of great bodily harm.
(6) Lewd or lascivious act as provided in subdivision (b) of Section 288 of the Penal Code.
(7) Oral copulation by force, violence, duress, menace, or threat of great bodily harm.
(8) Any offense specified in subdivision (a) of Section 289 of the Penal Code.
(9) Kidnapping for ransom.
(10) Kidnapping for purpose of robbery.
(11) Kidnapping with bodily harm.
(12) Attempted murder.
(13) Assault with a firearm or destructive device.
(14) Assault by any means of force likely to produce great bodily injury.
(15) Discharge of a firearm into an inhabited or occupied building.
(16)
Any offense described in Section 1203.09 of the Penal Code.
(17) Any offense described in Section 12022.5 or 12022.53 of the Penal Code.
(18) Any felony offense in which the minor personally used a weapon listed in subdivision (a) of Section 12020 of the Penal Code.
(19) Any felony offense described in Section 136.1(c) or 137(b) of the Penal Code.
(20) Manufacturing, compounding, or selling one-half ounce or more of any salt or solution of a controlled substance specified in subdivision (e) of Section 11055 of the Health and Safety Code.
(21) Any violent felony, as defined in subdivision (c) of Section 667.5 of the Penal Code, which would also constitute a felony violation of subdivision (b) of Section 186.22 of the Penal Code.
(22)Escape, by the use of force or violence, from any county juvenile hall, home, ranch, camp, or forestry camp in violation of subdivision (b) of Section 871 where great bodily injury is intentionally inflicted upon an employee of the juvenile facility during the commission of the escape.
(23) Torture as described in Sections 206 and 206.1 of the Penal Code.
(24) Aggravated mayhem, as described in Section 205 of the Penal Code.
(25) Carjacking, as described in Section 215 of the Penal Code, while armed with a dangerous or deadly weapon.
(26) Kidnapping, as punishable in subdivision (d) of Section 208 of the Penal Code.
(27) Kidnapping, as punishable in Section 209.5 of the Penal Code.
(28) The offense described in subdivision (c) of Section 12034 of the Penal Code.
(29) The offense described in Section 12308 of the Penal Code.
(30) Voluntary manslaughter, as described in subdivision (a) of Section 192 of the Penal Code.
(c) With regard to a minor alleged to be a person described in Section 602 by reason of the violation, when he or she was 14 years of age or older, of any of the offenses listed in subdivision (b), upon motion of the petitioner made prior to the attachment of jeopardy the court shall cause the probation officer to investigate and submit a report on the behavioral patterns and social history of the minor being considered for a determination of unfitness. Following submission and consideration of the report, and of any other relevant evidence which the petitioner or the minor may wish to submit the minor shall be presumed to be not a fit and proper subject to be dealt with under the juvenile court law unless the juvenile court concludes, based upon evidence, which evidence may be of extenuating or mitigating circumstances, that the minor would be amenable to the care, treatment, and training program available through the facilities of the juvenile court based upon an evaluation of each of the following criteria:
(1) The degree of criminal sophistication exhibited by the minor.
(2) Whether the minor can be rehabilitated prior to the expiration of the juvenile court's jurisdiction.
(3) The minor's previous delinquent history.
(4) Success of previous attempts by the juvenile court to rehabilitate the minor.
(5) The circumstances and gravity of the offenses alleged in the petition to have been committed by the minor. A determination that the minor is a fit and proper subject to be dealt with under the juvenile court law shall be based on a finding of amenability after consideration of the criteria set forth above, and findings therefor recited in the order as to each of the above criteria that the minor is fit and proper under each and every one of the above criteria. In making a finding of fitness, the court may consider extenuating or mitigating circumstances in evaluating each of the above criteria. In any case in which a hearing has been noticed pursuant to this section, the court shall postpone the taking of a plea to the petition until the conclusion of the fitness hearing and no plea which may already have been entered shall constitute evidence at the hearing. If, pursuant to this subdivision, the minor is found to be not a fit and proper subject for juvenile court treatment and is tried in a court of criminal jurisdiction and found guilty by the trier of fact, the judge may commit the minor to the Youth Authority in lieu of sentencing the minor to the state prison, unless the limitations specified in Section 1732.6 apply.
(d) (1) Except as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading in a court of criminal jurisdiction against any minor 16 years of age or older who is accused of committing an
offense enumerated in subdivision (b).
(2) Except as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading against a minor 14 years of age or older in a court of criminal jurisdiction in any case in which any one or more
of the following circumstances apply:
(A) The minor is alleged to have committed an offense which if committed by an adult would be punishable by death or imprisonment in the state prison for life.
(B) The minor is alleged to have personally used a firearm during the commission or attempted commission of a felony, as described in Section 12022.5 of the Penal Code.
(C) The minor is alleged to have committed an offense listed in subdivision (b) in which any one or more of the following circumstances apply:
(i) The minor has previously been found to be a person described in Section 602 by reason of the commission of an offense listed in subdivision (b).
(ii) The offense was committed for the benefit of, at the direction of, or in association with any criminal street gang, as defined in subdivision (f) of Section 186.22 of the Penal Code, with the specific intent to promote, further, or assist in any criminal conduct by gang members.
(iii) The offense was committed for the purpose of intimidating or interfering with any other person's free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States and because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because the minor perceives that the other person has one or more of those characteristics, as described in Title 11.6 (commencing with Section 422.6) of Part 1 of the Penal Code.
(iv)The victim of the offense was 65 years of age or older, or blind, deaf, quadriplegic, paraplegic, developmentally disabled, or confined to a wheelchair, and that disability was known or reasonably should have been known to the minor at the time of the commission of the offense.
(3)Except as provided in subdivision (b) of Section 602, the district attorney or other appropriate prosecuting officer may file an accusatory pleading in a court of criminal jurisdiction against any minor 16 years of age or older who is accused of committing one of the following offenses, if the minor has previously been found to be a person described in Section 602 by reason of the violation of any felony offense, when he or she was 14 years of age or older:
(A) Any felony offense in which it is alleged that the victim of the offense was 65 years of age or older, or blind, deaf, quadriplegic, paraplegic, developmentally disabled, or confined to a wheelchair, and that disability was known or reasonably should have been known to the minor at the time of the commission of the offense;
(B) Any felony offense committed for the purposes of intimidating or interfering with any other person's free exercise or enjoyment of any right secured to him or her by the Constitution or laws of this state or by the Constitution or laws of the United States and because of the other person's race, color, religion, ancestry, national origin, disability, gender, or sexual orientation, or because the minor perceived that the other person had one or more of those characteristics, as described in Title 11.6 (commencing with Section 422.6) of Part 1 of the Penal Code; or
(C)The offense was committed for the benefit of, at the direction of, or in association with any criminal street gang as prohibited by Section 186.22 of the Penal Code.
(4) In any case in which the district attorney or other appropriate prosecuting officer has filed an accusatory pleading against a minor in a court of criminal jurisdiction pursuant to the provisions of this subdivision, the case shall then proceed according to the laws applicable to a criminal case. In conjunction with the preliminary hearing as provided for in Section 738 of the Penal Code, the magistrate shall make a finding that reasonable cause exists to believe that the minor comes within the provisions of this subdivision. If reasonable cause is not established, the criminal court shall transfer the case to the juvenile court having jurisdiction over the matter.
(5) For any offense for which the prosecutor may file the accusatory pleading in a court of criminal jurisdiction pursuant to this subdivision, but elects instead to file a petition in the juvenile court, if the minor is subsequently found to be a person described in subdivision (a) of Section 602, the minor shall be committed to placement in a juvenile hall, ranch camp, forestry camp, boot camp, or secure juvenile home pursuant to Section 730, or in any institution operated by the Youth Authority.
(6) If, pursuant to this subdivision, the minor is found to be not a fit and proper subject for juvenile court treatment and is tried in a court of criminal jurisdiction and found guilty by the trier of fact, the judge may commit the minor to the Youth Authority in lieu of sentencing the minor to the state prison, unless the limitations specified in Section 1732.6 apply.
(e) Any report submitted by a probation officer pursuant to this section regarding the behavioral patterns and social history of the minor being considered for a determination of unfitness shall include any written or oral statement offered by the victim, the victim's
parent or guardian if the victim is a minor, or if the victim has died, the victim's next of kin, as authorized by subdivision (b) of Section 656.2. Victims' statements shall be considered by the court to the extent they are relevant to the court's determination of unfitness.
SECTION 11. RELEASE OF QUALIFIED INDIVIDUALS
Any individual sentenced under the prior three strikes law, including, but not limited to, Penal Code section 667, subdivision(e)(2), Penal Code section 1170.12, subdivision (c)(2),and/or section 707 of the welfare and institutions code for an enhanced conviction that would not qualify for enhancement under this statute, shall qualify for re-sentencing and be remanded to the court of origin for re-sentencing. Subject to the following conditions
(a) A person who was convicted of a felony and is currently serving an indeterminate term of life in prison for a felony, if the following apply:
(1)The person was sentenced pursuant to Section 667, 1170.12, or both, of the Penal Code and/or 707 of the welfare and institutions code prior to those sections being amended by this act.
(2)The currently charged felony resulting in the imposition of an indeterminate term of life in prison was not described as a violent or serious felony pursuant to this act.
(b)A person who is currently serving an indeterminate term of life in prison for a felony by virtue of a plea, if the following apply:
(1)The person was sentenced pursuant to Section 667, 1170.12, or both of the penal code, and/or 707 the welfare and institutions code, prior to those sections being amended by this act.
(2)The currently charged felony resulting in the imposition of an indeterminate term of life in prison was not described as a violent or serious felony pursuant to this act.
(c)The person agrees before the court pursuant to subdivision (b) shall, in the written motion, expressly waive double jeopardy for purposes of resentencing, in regard to any charges arising out of the same set of operative facts resulting in the plea, for charges that were not filed, or were dismissed pursuant to the plea.
(d) If the court determines that the person was sentenced pursuant to the three strikes
statutes prior to their amendment by this act, and the person meets the requirements of either subdivision (a) or (b), the court shall order that person to be resentenced, subject to subdivision (f), and in compliance with the sentencing laws as amended by this act.
(1) If the court grants resentencing for a person meeting the requirements of subdivision (a), the district attorney may also file any charges based on the same set of operative facts that resulted in the conviction, that were not filed in connection with the conviction, and for which the statute of limitations has not expired.
(2)If the court grants resentencing for a person meeting the requirements of subdivision (b), a district attorney seeking to file or refile charges arising out of the same set of operative facts resulting in the plea that were not filed or were dismissed pursuant to the plea shall obtain the court’s permission to file or refile those charges. The district attorney shall have to show by a preponderance of the evidence that the charges would have been filed, or would not have been dismissed, but for the plea.
(f)A person who meets the requirements of subdivision (a) or (b) shall be entitled to representation by counsel under this section, and for the purposes of resentencing, trial, or retrial. The person may request appointment of counsel by sending a written request to the court.
(j)The case shall be heard by the judge who conducted the trial, or accepted the convicted person’s plea of guilty or nolo contendere, unless the presiding judge determines that judge is unavailable. Upon request of either party, the court may order, in the interest of justice, that the convicted person be present at the hearing of the motion.
(k)Notwithstanding any other provision of law, the right to resentencing pursuant to this act is absolute and shall not be waived. This prohibition applies to, but is not limited to, a waiver that is given as part of an agreement resulting in a plea of guilty or nolo contendere.
(l) Those qualifying individuals shall be remanded to court and re-sentenced within no less than 30 days, and no more than 180 days, of this Act becoming effective, unless the qualifying individual personally waives this right in during the 180 day time period.
(l) Nothing in this section shall be construed as limiting the grounds for a writ of habeas corpus, or as precluding any other remedy.
(m) Under no circumstances may the resentencing, trial, or retrial of any individual pursuant to this section result in a sentence that is longer than the current sentence
(n) The provisions of this section are severable. If any provision of this section or its application is held invalid, that invalidity shall not affect other provisions or applications that can be given effect without the invalid provision or application.
SECTION 12. LIBERAL CONSTRUCTION
This Act is an exercise of the public power of the state for the protection of the health, safety, and welfare of the people of the State of California, and shall be liberally construed to effectuate these purposes.
SECTION 13. SEVERABILITY
The provisions of this Act are severable. If any provision of this Act, or the application thereof to any person or circumstance, is held invalid, that invalidity shall not affect any other provision or application of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are severable.
SECTION 14. CONFLICTING MEASURES
If this measure is approved by the voters, but superseded by any other conflicting ballot measure approved by more voters at the same election, and the conflicting ballot measure is later held invalid, it is the intent of the voters that this Act shall be self-executing and given the full force of law.
SECTION 15. EFFECTIVE DATE
This Act shall become effective immediately upon its approval by the voters.
SECTION 16. SELF-EXECUTION
This Act shall be self-executing.
SECTION 17. AMENDMENT
This Act shall not be altered or amended except by one of the following:
By statute passed in each house of the legislature, by roll call entered in the journal, with two-thirds of the membership and the Governor concurring, or
By statute passed in each house of the Legislature, by roll call vote entered in the journal, with a majority of the membership concurring, to be placed on the next general ballot, and with the majority of the electors concurring, or
By statute that becomes effective when approved by a majority of the electors.