Amended  IN  Assembly  March 22, 2017

CALIFORNIA LEGISLATURE— 2017–2018 REGULAR SESSION

Assembly Bill No. 27

Introduced by Assembly Members Melendez and Gonzalez

December 05, 2016

An act to amend Section 667.5 of the Penal Code, relating to sex offenses.


LEGISLATIVE COUNSEL'S DIGEST


AB 27, as amended, Melendez. Violent felonies: sex offenses.
Existing law, as amended by Proposition 21 as approved by the voters at the 21, adopted March 7, 2000, statewide primary election and by Proposition 83 at the 83, adopted November 7, 2006, statewide general election, 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. Existing law, as added by Proposition 184, adopted November 8, 1994, and amended by Proposition 36, adopted November 6, 2012, commonly known as the Three Strikes Law, also imposes additional years of imprisonment in state prison on a person who commits a violent felony and has been convicted of, or who has a prior conviction for, a violent felony. The Legislature may amend the above-specified initiative statutes by a statute passed in each house by a 2/3 vote.
This bill would additionally define as violent felonies rape, sodomy, penetration with a foreign object, or oral copulation, if the victim was unconscious, if the victim was incapable of giving consent due to intoxication, if the victim was incapable of giving legal consent because of a mental disorder or developmental or physical disability, if the victim submitted to the act under the belief that the person committing the act was someone known to the victim other than the accused, or if the act was accomplished against the victim’s will by threatening to use the authority of a public official, thereby amending Proposition 36 by adding to the list of violent felonies that can be prosecuted as a 3rd strike. official for purposes of the above-specified sentencing enhancements. By changing the definition of a crime, 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.
Vote: 2/3   Appropriation: NO   Fiscal Committee: YES   Local Program: YES  

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


SECTION 1.

 (a) The Legislature finds and declares all of the following:
(1) Rape and other forms of sexual assault have very traumatic impacts on victims of crime.
(2) Current law generally only classifies these offenses as violent felonies if they involve force or the threat of force.
(3) There has been an increasing awareness in recent years that all forms of sexual assault should be treated alike in terms of penalties, eligibility for probation and parole, and classification in terms of seriousness.
(4) The Legislature, in enacting Section 263.1 of the Penal Code, has declared that all forms of nonconsensual sexual assault may be considered rape for purposes of the gravity of the offense and the support of survivors.
(5) The Legislature has enacted legislation providing that defendants convicted of rape, sodomy, oral copulation, or sexual penetration by a foreign object under circumstances where the victim was incapable of giving consent due to being unconscious or intoxicated, like those who are convicted of committing those offenses through the use of force or threats, are ineligible for probation.
(6) Additional statutory changes are required in order to provide that different forms of rape and other types of sexual assault are accorded the same level of seriousness under the law.
(b) It is the intent of the Legislature in enacting this legislation to classify all forms of rape, spousal rape, sodomy, oral copulation, and sexual penetration in circumstances in which the felony offense is committed against a victim who did not consent to, or was incapable of consenting to, the criminal act as violent felonies for all purposes.

(1)

(c) It is not the intent of the Legislature to alter the classification of offenses commonly referred to as statutory rape or similar types of sexual offenses that are criminal solely due to the age of the victim.

SEC. 2.

 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 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, 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 if subdivision (a) applies, if the new offense is any 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 the sentence is not suspended for any felony. An additional term shall not be imposed under this subdivision for any 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 which 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 any felony sentence that is not suspended. A term imposed under 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) 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 subdivision (a) of Section 261 or subdivision (a) of Section 262.
(4) Sodomy as defined in subdivision (c), (d), (f), (g), (i), (j), or (k) of Section 286, or subdivision (h) of Section 286 if the offense is a felony. 286.
(5) Oral copulation as defined in subdivision (c), (d), (f), (g), (i), (j), or (k) of Section 288a, or subdivision (h) of Section 288a if the offense is a felony. 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 which 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), (b), (d), (e), (f), (g), or (j) of Section 289, or subdivision (c) of Section 289 if the offense is a felony. 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, which would constitute a felony violation of Section 186.22.
(20) Threats to victims or witnesses, as defined in Section 136.1, which 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. 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, 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 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, 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, when 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 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.
(2) This subdivision does not apply if a full, separate, and consecutive term is imposed pursuant to any other provision of law.

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.