1191. In a felony case, after a plea, finding, or verdict of
guilty, or after a finding or verdict against the defendant on a plea
of a former conviction or acquittal, or once in jeopardy, the court
shall appoint a time for pronouncing judgment, which shall be within
20 judicial days after the verdict, finding, or plea of guilty,
during which time the court shall refer the case to the probation
officer for a report if eligible for probation and pursuant to
Section 1203. However, the court may extend the time not more than 10
days for the purpose of hearing or determining any motion for a new
trial, or in arrest of judgment, and may further extend the time
until the probation officer's report is received and until any
proceedings for granting or denying probation have been disposed of.
If, in the opinion of the court, there is a reasonable ground for
believing a defendant insane, the court may extend the time for
pronouncing sentence until the question of insanity has been heard
and determined, as provided in this code. If the court orders the
defendant placed in a diagnostic facility pursuant to Section
1203.03, the time otherwise allowed by this section for pronouncing
judgment is extended by a period equal to (1) the number of days
which elapse between the date of the order and the date on which
notice is received from the Director of Corrections advising whether
or not the Department of Corrections will receive the defendant in
the facility, and (2) if the director notifies the court that it will
receive the defendant, the time which elapses until his or her
return to the court from the facility.
1191.1. The victim of any crime, or the parents or guardians of the
victim if the victim is a minor, or the next of kin of the victim if
the victim has died, have the right to attend all sentencing
proceedings under this chapter and shall be given adequate notice by
the probation officer of all sentencing proceedings concerning the
person who committed the crime.
The victim, or up to two of the victim's parents or guardians if
the victim is a minor, or the next of kin of the victim if the victim
has died, have the right to appear, personally or by counsel, at the
sentencing proceeding and to reasonably express his, her, or their
views concerning the crime, the person responsible, and the need for
restitution. The court in imposing sentence shall consider the
statements of victims, parents or guardians, and next of kin made
pursuant to this section and shall state on the record its conclusion
concerning whether the person would pose a threat to public safety
if granted probation.
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.
1191.10. The definition of the term "victim" as used in Section
1191.1 includes any insurer or employer who was the victim of workers'
compensation fraud for the crimes specified in Section 549 of this
code, Sections 2314 and 6152 of the Business and Professions Code,
Sections 1871.4, 11760, and 11880 of the Insurance Code, and Section
3215 of the Labor Code.
1191.15. (a) The court may permit the victim of any crime, or his
or her parent or guardian if the victim is a minor, or the next of
kin of the victim if the victim has died, to file with the court a
written, audiotaped, or videotaped statement, or statement stored on
a CD Rom, DVD, or any other recording medium acceptable to the court,
expressing his or her views concerning the crime, the person
responsible, and the need for restitution, in lieu of or in addition
to the person personally appearing at the time of judgment and
sentence. The court shall consider the statement filed with the court
prior to imposing judgment and sentence.
Whenever an audio or video statement or statement stored on a CD
Rom, DVD, or other medium is filed with the court, a written
transcript of the statement shall also be provided by the person
filing the statement, and shall be made available as a public record
of the court after the judgment and sentence have been imposed.
(b) Whenever a written, audio, or video statement or statement
stored on a CD Rom, DVD, or other medium is filed with the court, it
shall remain sealed until the time set for imposition of judgment and
sentence except that the court, the probation officer, and counsel
for the parties may view and listen to the statement not more than
two court days prior to the date set for imposition of judgment and
sentence.
(c) No person may, and no court shall, permit any person to
duplicate, copy, or reproduce by any audio or visual means any
statement submitted to the court under the provisions of this
section.
(d) Nothing in this section shall be construed to prohibit the
prosecutor from representing to the court the views of the victim or
his or her parent or guardian or the next of kin.
(e) In the event the court permits an audio or video statement or
statement stored on a CD Rom, DVD, or other medium to be filed, the
court shall not be responsible for providing any equipment or
resources needed to assist the victim in preparing the statement.
1191.16. The victim of any crime, or the parents or guardians of
the victim if the victim is a minor, or the next of kin of the victim
if the victim has died, who choose to exercise their rights with
respect to sentencing proceedings as described in Section 1191.1 may,
in any case where the defendant is subject to an indeterminate term
of imprisonment, have their statements simultaneously recorded and
preserved by means of videotape, videodisc, or any other means of
preserving audio and video, if they notify the prosecutor in advance
of the sentencing hearing and the prosecutor reasonably is able to
provide the means to record and preserve the statement. If a video
and audio record is developed, that record shall be maintained and
preserved by the prosecution and used in accordance with the
regulations of the Board of Prison Terms at any hearing to review
parole suitability or the setting of a parole date.
1191.2. In providing notice to the victim pursuant to Section
1191.1, the probation officer shall also provide the victim with
information concerning the victim's right to civil recovery against
the defendant, the requirement that the court order restitution for
the victim, the victim's right to receive a copy of the restitution
order from the court and to enforce the restitution order as a civil
judgment, the victim's responsibility to furnish the probation
department, district attorney, and court with information relevant to
his or her losses, and the victim's opportunity to be compensated
from the Restitution Fund if eligible under Article 1 (commencing
with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2
of the Government Code. This information shall be in the form of
written material prepared by the Judicial Council in consultation
with the California Victim Compensation and Government Claims Board,
shall include the relevant sections of the Penal Code, and shall be
provided to each victim for whom the probation officer has a current
mailing address.
1191.21. (a) (1) The California Emergency Management Agency shall
develop and make available a "notification of eligibility" card for
victims and derivative victims of crimes as defined in subdivision
(c) of Section 13960 of the Government Code that includes, but is not
limited to, the following information:
"If you have been the victim of a crime that meets the required
definition, you or others may be eligible to receive payment from the
California State Restitution Fund for losses directly resulting from
the crime. To learn about eligibility and receive an application to
receive payments, call the Victims of Crime Program at (800) 777-9229
or call your local county Victim Witness Assistance Center."
(2) At a minimum, the California Emergency Management Agency shall
develop a template available for downloading on its Internet Web
site the information requested in subdivision (b).
(b) In a case involving a crime as defined in subdivision (c) of
Section 13960 of the Government Code, the law enforcement officer
with primary responsibility for investigating the crime committed
against the victim and the district attorney may provide the
"notification of eligibility" card to the victim and derivative
victim of a crime.
(c) The terms "victim" and "derivative victim" shall be given the
same meaning given those terms in Section 13960 of the Government
Code.
1191.25. The prosecution shall make a good faith attempt to notify
any victim of a crime which was committed by, or is alleged to have
been committed by, an in-custody informant, as defined in subdivision
(a) of Section 1127a, within a reasonable time before the in-custody
informant is called to testify. The notice shall include information
concerning the prosecution's intention to offer the in-custody
informant a modification or reduction in sentence or dismissal of the
case or early parole in exchange for the in-custody informant's
testimony in another case. The notification or attempt to notify the
victim shall be made prior to the commencement of the trial in which
the in-custody informant is to testify where the intention to call
him or her is known at that time, but in no case shall the notice be
made later than the time the in-custody informant is called to the
stand.
Nothing contained in this section is intended to affect the right
of the people and the defendant to an expeditious disposition of a
criminal proceeding, as provided in Section 1050. The victim of any
case alleged to have been committed by the in-custody informant may
exercise his or her right to appear at the sentencing of the
in-custody informant pursuant to Section 1191.1, but the victim shall
not have a right to intervene in the trial in which the in-custody
informant is called to testify.
1191.3. (a) At the time of sentencing or pronouncement of judgment
in which sentencing is imposed, the court shall make an oral
statement that statutory law permits the award of conduct and
worktime credits up to one-third or one-half of the sentence that is
imposed by the court, that the award and calculation of credits is
determined by the sheriff in cases involving imprisonment in county
jails and by the Department of Corrections in cases involving
imprisonment in the state prison, and that credit for presentence
incarceration served by the defendant is calculated by the probation
department under current state law.
As used in this section, "victim" means the victim of the offense,
the victim's parent or guardian if the victim is a minor, or the
victim's next of kin.
(b) The probation officer shall provide a general estimate of the
credits to which the defendant may be entitled for previous time
served, and conduct or worktime credits authorized under Sections
2931, 2933, or 4019, and shall inform the victim pursuant to Section
1191.1. The probation officer shall file this estimate with the court
and it shall become a part of the court record.
(c) This section applies to all felony convictions.
1192. Upon a plea of guilty, or upon conviction by the court
without a jury, of a crime or attempted crime distinguished or
divided into degrees, the court must, before passing sentence,
determine the degree. Upon the failure of the court to so determine,
the degree of the crime or attempted crime of which the defendant is
guilty, shall be deemed to be of the lesser degree.
1192.1. Upon a plea of guilty to an information or indictment
accusing the defendant of a crime or attempted crime divided into
degrees when consented to by the prosecuting attorney in open court
and approved by the court, such plea may specify the degree thereof
and in such event the defendant cannot be punished for a higher
degree of the crime or attempted crime than the degree specified.
1192.2. Upon a plea of guilty before a committing magistrate as
provided in Section 859a, to a crime or attempted crime divided into
degrees, when consented to by the prosecuting attorney in open court
and approved by such magistrate, such plea may specify the degree
thereof and in such event, the defendant cannot be punished for a
higher degree of the crime or attempted crime than the degree
specified.
1192.3. (a) A plea of guilty or nolo contendere to an accusatory
pleading charging a public offense, other than a felony specified in
Section 1192.5 or 1192.7, which public offense did not result in
damage for which restitution may be ordered, made on the condition
that charges be dismissed for one or more public offenses arising
from the same or related course of conduct by the defendant which did
result in damage for which restitution may be ordered, may specify
the payment of restitution by the defendant as a condition of the
plea or any probation granted pursuant thereto, so long as the plea
is freely and voluntarily made, there is factual basis for the plea,
and the plea and all conditions are approved by the court.
(b) If restitution is imposed which is attributable to a count
dismissed pursuant to a plea bargain, as described in this section,
the court shall obtain a waiver pursuant to People v. Harvey (1979)
25 Cal. 3d 754 from the defendant as to the dismissed count.
1192.4. If the defendant's plea of guilty pursuant to Section
1192.1 or 1192.2 is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter such plea or pleas as would otherwise have
been available. The plea so withdrawn may not be received in evidence
in any criminal, civil, or special action or proceeding of any
nature, including proceedings before agencies, commissions, boards,
and tribunals.
1192.5. Upon a plea of guilty or nolo contendere to an accusatory
pleading charging a felony, other than a 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, Section 286 by
force, violence, duress, menace or threat of great bodily harm,
subdivision (b) of Section 288, Section 288a by force, violence,
duress, menace or threat of great bodily harm, or subdivision (a) of
Section 289, the plea may specify the punishment to the same extent
as it may be specified by the jury on a plea of not guilty or fixed
by the court on a plea of guilty, nolo contendere, or not guilty, and
may specify the exercise by the court thereafter of other powers
legally available to it.
Where the plea is accepted by the prosecuting attorney in open
court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea
to a punishment more severe than that specified in the plea and the
court may not proceed as to the plea other than as specified in the
plea.
If the court approves of the plea, it shall inform the defendant
prior to the making of the plea that (1) its approval is not binding,
(2) it may, at the time set for the hearing on the application for
probation or pronouncement of judgment, withdraw its approval in the
light of further consideration of the matter, and (3) in that case,
the defendant shall be permitted to withdraw his or her plea if he or
she desires to do so. The court shall also cause an inquiry to be
made of the defendant to satisfy itself that the plea is freely and
voluntarily made, and that there is a factual basis for the plea.
If the plea is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter the plea or pleas as would otherwise have
been available.
If the plea is withdrawn or deemed withdrawn, it may not be
received in evidence in any criminal, civil, or special action or
proceeding of any nature, including proceedings before agencies,
commissions, boards, and tribunals.
1192.6. (a) In each felony case in which the charges contained in
the original accusatory pleading are amended or dismissed, the record
shall contain a statement explaining the reason for the amendment or
dismissal.
(b) In each felony case in which the prosecuting attorney seeks a
dismissal of a charge in the complaint, indictment, or information,
he or she shall state the specific reasons for the dismissal in open
court, on the record.
(c) When, upon a plea of guilty or nolo contendere to an
accusatory pleading charging a felony, whether or not that plea is
entered pursuant to Section 1192.5, the prosecuting attorney
recommends what punishment the court should impose or how it should
exercise any of the powers legally available to it, the prosecuting
attorney shall state the specific reasons for the recommendation in
open court, on the record. The reasons for the recommendation shall
be transcribed and made part of the court file.
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) 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.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining 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. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(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:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
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; (5) 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; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (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; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) 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;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) 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 Section
11100 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;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) 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; (32) 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;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 12034; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(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.
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) 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.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining 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. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(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:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
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; (5) 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; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (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; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) 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;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) 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 Section
11100 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;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) 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; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Section 245.2, 245.3, or 245.5; (33)
discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 26100; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(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.
1192.8. (a) For purposes of subdivision (c) of Section 1192.7,
"serious felony" also means any violation of Section 191.5, paragraph
(1) of subdivision (c) of Section 192, subdivision (a), (b), or (c)
of Section 192.5 of this code, or Section 2800.3, subdivision (b) of
Section 23104, or Section 23153 of the Vehicle Code, when any of
these offenses involve the personal infliction of great bodily injury
on any person other than an accomplice, or the personal use of a
dangerous or deadly weapon, within the meaning of paragraph (8) or
(23) of subdivision (c) of Section 1192.7.
(b) It is the intent of the Legislature, in enacting subdivision
(a), to codify the court decisions of People v. Gonzales, 29 Cal.
App. 4th 1684, and People v. Bow, 13 Cal. App. 4th 1551, and to
clarify that the crimes specified in subdivision (a) have always
been, and continue to be, serious felonies within the meaning of
subdivision (c) of Section 1192.7.
1193. Judgment upon persons convicted of commission of crime shall
be pronounced as follows:
(a) If the conviction is for a felony, the defendant shall be
personally present when judgment is pronounced against him or her,
unless the defendant, in open court and on the record, or in a
notarized writing, requests that judgment be pronounced against him
or her in his or her absence, and that he or she be represented by an
attorney when judgment is pronounced, and the court approves his or
her absence during the pronouncement of judgment, or unless, after
the exercise of reasonable diligence to procure the presence of the
defendant, the court shall find that it will be in the interest of
justice that judgment be pronounced in his or her absence; provided,
that when any judgment imposing the death penalty has been affirmed
by the appellate court, sentence may be reimposed upon the defendant
in his or her absence by the court from which the appeal was taken,
and in the following manner: upon receipt by the superior court from
which the appeal is taken of the certificate of the appellate court
affirming the judgment, the judge of the superior court shall
forthwith make and cause to be entered an order pronouncing sentence
against the defendant, and a warrant signed by the judge, and
attested by the clerk under the seal of the court, shall be drawn,
and it shall state the conviction and judgment and appoint a day upon
which the judgment shall be executed, which shall not be less than
60 days nor more than 90 days from the time of making the order; and
that, within five days thereafter, a certified copy of the order,
attested by the clerk under the seal of the court, and attached to
the warrant, shall, for the purpose of execution, be transmitted by
registered mail to the warden of the state prison having the custody
of the defendant and certified copies thereof shall be transmitted by
registered mail to the Governor; and provided further, that when any
judgment imposing the death penalty has been affirmed and sentence
has been reimposed as above provided there shall be no appeal from
the order fixing the time for and directing the execution of the
judgment as herein provided. If a pro se defendant requests that
judgment in a noncapital case be pronounced against him or her in his
or her absence, the court shall appoint an attorney to represent the
defendant in the in absentia sentencing.
(b) If the conviction be of a misdemeanor, judgment may be
pronounced against the defendant in his absence.
1194. When the defendant is in custody, the Court may direct the
officer in whose custody he is to bring him before it for judgment,
and the officer must do so.
1195. If the defendant has been released on bail, or has deposited
money or property instead thereof, and does not appear for judgment
when his personal appearance is necessary, the court, in addition to
the forfeiture of the undertaking of bail, or of the money or
property deposited, must, on application of the prosecuting attorney,
direct the issuance of a bench warrant for the arrest of the
defendant.
If the defendant, who is on bail, does appear for judgment and
judgment is pronounced upon him or probation is granted to him, then
the bail shall be exonerated or, if money or property has been
deposited instead of bail, it must be returned to the defendant or to
the person or persons found by the court to have deposited said
money or property on behalf of said defendant.
1196. (a) The clerk must, at any time after the order, issue a
bench warrant into one or more counties.
(b) The clerk shall require the appropriate agency to enter each
bench warrant issued on a private surety-bonded felony case into the
national warrant system (National Crime Information Center (NCIC)).
If the appropriate agency fails to enter the bench warrant into the
national warrant system (NCIC), and the court finds that this failure
prevented the surety or bond agent from surrendering the fugitive
into custody, prevented the fugitive from being arrested or taken
into custody, or resulted in the fugitive's subsequent release from
custody, the court having jurisdiction over the bail shall, upon
petition, set aside the forfeiture of the bond and declare all
liability on the bail bond to be exonerated.
1197. The bench warrant must be substantially in the following
form:
County of ____
The people of the State of California to any peace officer in this
State: ______ (name of defendant) having been on the ____ day of
____, 19_, duly convicted in the ____ court of ____ (naming the
court) of the crime of ____ (designating it generally), you are
therefore commanded forthwith to arrest the above named defendant and
bring him before that court for judgment.
Given under my hand with the seal of said court affixed, this ____
day of ____, 19_.
By order of said court.
____________________
(SEAL) Clerk (or Judge, or Justice)
1198. The bench warrant may be served in any county in the same
manner as a warrant of arrest.
1199. Whether the bench warrant is served in the county in which it
was issued or in another county, the officer must arrest the
defendant and bring him before the court, or deliver him to any peace
officer of the county from which the warrant issued, who must bring
him before said court according to the command thereof.
1200. When the defendant appears for judgment he must be informed
by the Court, or by the Clerk, under its direction, of the nature of
the charge against him and of his plea, and the verdict, if any
thereon, and must be asked whether he has any legal cause to show why
judgment should not be pronounced against him.
1201. He or she may show, for cause against the judgment:
(a) That he or she is insane; and if, in the opinion of the court,
there is reasonable ground for believing him or her insane, the
question of insanity shall be tried as provided in Chapter 6
(commencing with Section 1367) of Title 10 of Part 2. If, upon the
trial of that question, the jury finds that he or she is sane,
judgment shall be pronounced, but if they find him or her insane, he
or she shall be committed to the state hospital for the care and
treatment of the insane, until he or she becomes sane; and when
notice is given of that fact, as provided in Section 1372, he or she
shall be brought before the court for judgment.
(b) That he or she has good cause to offer, either in arrest of
judgment or for a new trial; in which case the court may, in its
discretion, order the judgment to be deferred, and proceed to decide
upon the motion in arrest of judgment or for a new trial.
1201.3. (a) Upon the conviction of a defendant for a sexual offense
involving a minor victim, or in the case of a minor appearing in
juvenile court if a petition is admitted or sustained for a sexual
offense involving a minor victim, the court is authorized to issue
orders that would prohibit the defendant or juvenile, for a period up
to 10 years, from harassing, intimidating, or threatening the victim
or the victim's family members or spouse.
(b) No order issued pursuant to this section shall be interpreted
to apply to counsel acting on behalf of the defendant or juvenile, or
to investigators working on behalf of counsel, in an action relating
to a conviction, petition in juvenile court, or any civil action
arising therefrom, provided however, that no counsel or investigator
shall harass or threaten any person protected by an order issued
pursuant to subdivision (a).
(c) Notice of the intent to request an order pursuant to this
section shall be given to counsel for the defendant or juvenile by
the prosecutor or the court at the time of conviction, or disposition
of the petition in juvenile court, and counsel shall have adequate
time in which to respond to the request before the order is made.
(d) A violation of an order issued pursuant to subdivision (a) is
punishable as provided in Section 166.
1201.5. Any motions made subsequent to judgment must be made only
upon written notice served upon the prosecution at least three days
prior to the date of hearing thereon. No affidavit or other writing
shall be presented or considered in support thereof unless a copy of
the same has been duly served upon the prosecution at least three
days prior to a hearing thereon. Any appeal from an order entered
upon a motion made other than as herein provided, must be dismissed
by the court.
1202. If no sufficient cause is alleged or appears to the court at
the time fixed for pronouncing judgment, as provided in Section 1191,
why judgment should not be pronounced, it shall thereupon be
rendered; and if not rendered or pronounced within the time so fixed
or to which it is continued under the provisions of Section 1191,
then the defendant shall be entitled to a new trial. If the court
shall refuse to hear a defendant's motion for a new trial or when
made shall neglect to determine such motion before pronouncing
judgment or the making of an order granting probation, then the
defendant shall be entitled to a new trial.
1202a. If the judgment is for imprisonment in the state prison the
judgment shall direct that the defendant be delivered into the
custody of the Director of Corrections at the state prison or
institution designated by the Director of Corrections as the place
for the reception of persons convicted of felonies, except where the
judgment is for death in which case the defendant shall be taken to
the warden of the California State Prison at San Quentin.
Unless a different place or places are so designated by the
Director of Corrections, the judgment shall direct that the defendant
be delivered into the custody of the Director of Corrections at the
California State Prison at San Quentin. The Director of Corrections
shall designate a place or places for the reception of persons
convicted of felonies by order, which order or orders shall be served
by registered mail, return receipt requested, upon each judge of
each superior court in the state. The Director of Corrections may
change the place or places of commitment by the issuance of a new
order. Nothing contained in this section affects any provision of
Section 3400.
1202.05. (a) Whenever a person is sentenced to the state prison on
or after January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of
those offenses is a child under the age of 18 years, the court shall
prohibit all visitation between the defendant and the child victim.
The court's order shall be transmitted to the Department of
Corrections, to the parents, adoptive parents, or guardians, or a
combination thereof, of the child victim, and to the child victim. If
any parent, adoptive parent, or legal guardian of the child victim,
or the child victim objects to the court's order, he or she may
request a hearing on the matter. Any request for a hearing on the
matter filed with the sentencing court shall be referred to the
appropriate juvenile court pursuant to Section 362.6 of the Welfare
and Institutions Code.
(b) The Department of Corrections is authorized to notify the
sentencing court of persons who were sentenced to the state prison
prior to January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, when the victim of one or more of
those offenses was a child under the age of 18 years.
Upon notification by the department pursuant to this subdivision,
the sentencing court shall prohibit all visitation between the
defendant and the child victim, according to the procedures specified
in subdivision (a).
1202.1. (a) Notwithstanding Sections 120975 and 120990 of the
Health and Safety Code, the court shall order every person who is
convicted of, or adjudged by the court to be a person described by
Section 601 or 602 of the Welfare and Institutions Code as provided
in Section 725 of the Welfare and Institutions Code by reason of a
violation of, a sexual offense listed in subdivision (e), whether or
not a sentence or fine is imposed or probation is granted, to submit
to a blood or oral mucosal transudate saliva test for evidence of
antibodies to the probable causative agent of acquired immune
deficiency syndrome (AIDS) within 180 days of the date of conviction.
Each person tested under this section shall be informed of the
results of the blood or oral mucosal transudate saliva test.
(b) Notwithstanding Section 120980 of the Health and Safety Code,
the results of the blood or oral mucosal transudate saliva test to
detect antibodies to the probable causative agent of AIDS shall be
transmitted by the clerk of the court to the Department of Justice
and the local health officer.
(c) Notwithstanding Section 120980 of the Health and Safety Code,
the Department of Justice shall provide the results of a test or
tests as to persons under investigation or being prosecuted under
Section 647f or 12022.85, if the results are on file with the
department, to the defense attorney upon request and the results also
shall be available to the prosecuting attorney upon request for the
purpose of either preparing counts for a subsequent offense under
Section 647f or sentence enhancement under Section 12022.85 or
complying with subdivision (d).
(d) (1) In every case in which a person is convicted of a sexual
offense listed in subdivision (e) or adjudged by the court to be a
person described by Section 601 or 602 of the Welfare and
Institutions Code as provided in Section 725 of the Welfare and
Institutions Code by reason of the commission of a sexual offense
listed in subdivision (e), the prosecutor or the prosecutor's
victim-witness assistance bureau shall advise the victim of his or
her right to receive the results of the blood or oral mucosal
transudate saliva test performed pursuant to subdivision (a). The
prosecutor or the prosecutor's victim-witness assistance bureau shall
refer the victim to the local health officer for counseling to
assist him or her in understanding the extent to which the particular
circumstances of the crime may or may not have placed the victim at
risk of transmission of the human immunodeficiency virus (HIV) from
the accused, to ensure that the victim understands the limitations
and benefits of current tests for HIV, and to assist the victim in
determining whether he or she should make the request.
(2) Notwithstanding any other law, upon the victim's request, the
local health officer shall be responsible for disclosing test results
to the victim who requested the test and the person who was tested.
However, as specified in subdivision (g), positive test results shall
not be disclosed to the victim or the person who was tested without
offering or providing professional counseling appropriate to the
circumstances as follows:
(A) To help the victim understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the perpetrator.
(B) To ensure that the victim understands both the benefits and
limitations of the current tests for HIV.
(C) To obtain referrals to appropriate health care and support
services.
(e) For purposes of this section, "sexual offense" includes any of
the following:
(1) Rape in violation of Section 261 or 264.1.
(2) Unlawful intercourse with a person under 18 years of age in
violation of Section 261.5 or 266c.
(3) Rape of a spouse in violation of Section 262 or 264.1.
(4) Sodomy in violation of Section 266c or 286.
(5) Oral copulation in violation of Section 266c or 288a.
(6) (A) Any of the following offenses if the court finds that
there is probable cause to believe that blood, semen, or any other
bodily fluid capable of transmitting HIV has been transferred from
the defendant to the victim:
(i) Sexual penetration in violation of Section 264.1, 266c, or
289.
(ii) Aggravated sexual assault of a child in violation of Section
269.
(iii) Lewd or lascivious conduct with a child in violation of
Section 288.
(iv) Continuous sexual abuse of a child in violation of Section
288.5.
(v) The attempt to commit any offense described in clauses (i) to
(iv), inclusive.
(B) For purposes of this paragraph, the court shall note its
finding on the court docket and minute order if one is prepared.
(f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (a) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
person who is tested unless any initially reactive test result has
been confirmed by appropriate confirmatory tests for positive
reactors.
(g) The local health officer shall be responsible for disclosing
test results to the victim who requested the test and the person who
was tested. However, positive test results shall not be disclosed to
the victim or the person who was tested without offering or providing
professional counseling appropriate to the circumstances.
(h) The local health officer and the victim shall comply with all
laws and policies relating to medical confidentiality, subject to the
disclosure authorized by subdivisions (g) and (i).
(i) Any victim who receives information from the local health
officer pursuant to subdivision (g) may disclose the information as
he or she deems necessary to protect his or her health and safety or
the health and safety of his or her family or sexual partner.
(j) Any person who transmits test results or discloses information
pursuant to this section shall be immune from civil liability for
any action taken in compliance with this section.
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the two
hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court
may specify that funds confiscated at the time of the defendant's
arrest, except for funds confiscated pursuant to Section 11469 of the
Health and Safety Code, be applied to the restitution fine if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two hundred-dollar ($200) or one hundred-dollar
($100) minimum, the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or his
or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on
the amount of the fine shall not be required. A separate hearing for
the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12 (commencing with
Section 76000) of Title 8 of the Government Code, or the state
surcharge authorized in Section 1465.7, and shall be deposited in the
Restitution Fund in the State Treasury.
(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant's conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so, and states them on the record. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) of
Part 4 of Division 3 of Title 2 of the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include any commission income as well as any
base wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include any
commission income as well as any base wages. Commission income shall
be established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5,
including, but not limited to, a home security device or system, or
replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure sha
1191. In a felony case, after a plea, finding, or verdict of
guilty, or after a finding or verdict against the defendant on a plea
of a former conviction or acquittal, or once in jeopardy, the court
shall appoint a time for pronouncing judgment, which shall be within
20 judicial days after the verdict, finding, or plea of guilty,
during which time the court shall refer the case to the probation
officer for a report if eligible for probation and pursuant to
Section 1203. However, the court may extend the time not more than 10
days for the purpose of hearing or determining any motion for a new
trial, or in arrest of judgment, and may further extend the time
until the probation officer's report is received and until any
proceedings for granting or denying probation have been disposed of.
If, in the opinion of the court, there is a reasonable ground for
believing a defendant insane, the court may extend the time for
pronouncing sentence until the question of insanity has been heard
and determined, as provided in this code. If the court orders the
defendant placed in a diagnostic facility pursuant to Section
1203.03, the time otherwise allowed by this section for pronouncing
judgment is extended by a period equal to (1) the number of days
which elapse between the date of the order and the date on which
notice is received from the Director of Corrections advising whether
or not the Department of Corrections will receive the defendant in
the facility, and (2) if the director notifies the court that it will
receive the defendant, the time which elapses until his or her
return to the court from the facility.
1191.1. The victim of any crime, or the parents or guardians of the
victim if the victim is a minor, or the next of kin of the victim if
the victim has died, have the right to attend all sentencing
proceedings under this chapter and shall be given adequate notice by
the probation officer of all sentencing proceedings concerning the
person who committed the crime.
The victim, or up to two of the victim's parents or guardians if
the victim is a minor, or the next of kin of the victim if the victim
has died, have the right to appear, personally or by counsel, at the
sentencing proceeding and to reasonably express his, her, or their
views concerning the crime, the person responsible, and the need for
restitution. The court in imposing sentence shall consider the
statements of victims, parents or guardians, and next of kin made
pursuant to this section and shall state on the record its conclusion
concerning whether the person would pose a threat to public safety
if granted probation.
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.
1191.10. The definition of the term "victim" as used in Section
1191.1 includes any insurer or employer who was the victim of workers'
compensation fraud for the crimes specified in Section 549 of this
code, Sections 2314 and 6152 of the Business and Professions Code,
Sections 1871.4, 11760, and 11880 of the Insurance Code, and Section
3215 of the Labor Code.
1191.15. (a) The court may permit the victim of any crime, or his
or her parent or guardian if the victim is a minor, or the next of
kin of the victim if the victim has died, to file with the court a
written, audiotaped, or videotaped statement, or statement stored on
a CD Rom, DVD, or any other recording medium acceptable to the court,
expressing his or her views concerning the crime, the person
responsible, and the need for restitution, in lieu of or in addition
to the person personally appearing at the time of judgment and
sentence. The court shall consider the statement filed with the court
prior to imposing judgment and sentence.
Whenever an audio or video statement or statement stored on a CD
Rom, DVD, or other medium is filed with the court, a written
transcript of the statement shall also be provided by the person
filing the statement, and shall be made available as a public record
of the court after the judgment and sentence have been imposed.
(b) Whenever a written, audio, or video statement or statement
stored on a CD Rom, DVD, or other medium is filed with the court, it
shall remain sealed until the time set for imposition of judgment and
sentence except that the court, the probation officer, and counsel
for the parties may view and listen to the statement not more than
two court days prior to the date set for imposition of judgment and
sentence.
(c) No person may, and no court shall, permit any person to
duplicate, copy, or reproduce by any audio or visual means any
statement submitted to the court under the provisions of this
section.
(d) Nothing in this section shall be construed to prohibit the
prosecutor from representing to the court the views of the victim or
his or her parent or guardian or the next of kin.
(e) In the event the court permits an audio or video statement or
statement stored on a CD Rom, DVD, or other medium to be filed, the
court shall not be responsible for providing any equipment or
resources needed to assist the victim in preparing the statement.
1191.16. The victim of any crime, or the parents or guardians of
the victim if the victim is a minor, or the next of kin of the victim
if the victim has died, who choose to exercise their rights with
respect to sentencing proceedings as described in Section 1191.1 may,
in any case where the defendant is subject to an indeterminate term
of imprisonment, have their statements simultaneously recorded and
preserved by means of videotape, videodisc, or any other means of
preserving audio and video, if they notify the prosecutor in advance
of the sentencing hearing and the prosecutor reasonably is able to
provide the means to record and preserve the statement. If a video
and audio record is developed, that record shall be maintained and
preserved by the prosecution and used in accordance with the
regulations of the Board of Prison Terms at any hearing to review
parole suitability or the setting of a parole date.
1191.2. In providing notice to the victim pursuant to Section
1191.1, the probation officer shall also provide the victim with
information concerning the victim's right to civil recovery against
the defendant, the requirement that the court order restitution for
the victim, the victim's right to receive a copy of the restitution
order from the court and to enforce the restitution order as a civil
judgment, the victim's responsibility to furnish the probation
department, district attorney, and court with information relevant to
his or her losses, and the victim's opportunity to be compensated
from the Restitution Fund if eligible under Article 1 (commencing
with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2
of the Government Code. This information shall be in the form of
written material prepared by the Judicial Council in consultation
with the California Victim Compensation and Government Claims Board,
shall include the relevant sections of the Penal Code, and shall be
provided to each victim for whom the probation officer has a current
mailing address.
1191.21. (a) (1) The California Emergency Management Agency shall
develop and make available a "notification of eligibility" card for
victims and derivative victims of crimes as defined in subdivision
(c) of Section 13960 of the Government Code that includes, but is not
limited to, the following information:
"If you have been the victim of a crime that meets the required
definition, you or others may be eligible to receive payment from the
California State Restitution Fund for losses directly resulting from
the crime. To learn about eligibility and receive an application to
receive payments, call the Victims of Crime Program at (800) 777-9229
or call your local county Victim Witness Assistance Center."
(2) At a minimum, the California Emergency Management Agency shall
develop a template available for downloading on its Internet Web
site the information requested in subdivision (b).
(b) In a case involving a crime as defined in subdivision (c) of
Section 13960 of the Government Code, the law enforcement officer
with primary responsibility for investigating the crime committed
against the victim and the district attorney may provide the
"notification of eligibility" card to the victim and derivative
victim of a crime.
(c) The terms "victim" and "derivative victim" shall be given the
same meaning given those terms in Section 13960 of the Government
Code.
1191.25. The prosecution shall make a good faith attempt to notify
any victim of a crime which was committed by, or is alleged to have
been committed by, an in-custody informant, as defined in subdivision
(a) of Section 1127a, within a reasonable time before the in-custody
informant is called to testify. The notice shall include information
concerning the prosecution's intention to offer the in-custody
informant a modification or reduction in sentence or dismissal of the
case or early parole in exchange for the in-custody informant's
testimony in another case. The notification or attempt to notify the
victim shall be made prior to the commencement of the trial in which
the in-custody informant is to testify where the intention to call
him or her is known at that time, but in no case shall the notice be
made later than the time the in-custody informant is called to the
stand.
Nothing contained in this section is intended to affect the right
of the people and the defendant to an expeditious disposition of a
criminal proceeding, as provided in Section 1050. The victim of any
case alleged to have been committed by the in-custody informant may
exercise his or her right to appear at the sentencing of the
in-custody informant pursuant to Section 1191.1, but the victim shall
not have a right to intervene in the trial in which the in-custody
informant is called to testify.
1191.3. (a) At the time of sentencing or pronouncement of judgment
in which sentencing is imposed, the court shall make an oral
statement that statutory law permits the award of conduct and
worktime credits up to one-third or one-half of the sentence that is
imposed by the court, that the award and calculation of credits is
determined by the sheriff in cases involving imprisonment in county
jails and by the Department of Corrections in cases involving
imprisonment in the state prison, and that credit for presentence
incarceration served by the defendant is calculated by the probation
department under current state law.
As used in this section, "victim" means the victim of the offense,
the victim's parent or guardian if the victim is a minor, or the
victim's next of kin.
(b) The probation officer shall provide a general estimate of the
credits to which the defendant may be entitled for previous time
served, and conduct or worktime credits authorized under Sections
2931, 2933, or 4019, and shall inform the victim pursuant to Section
1191.1. The probation officer shall file this estimate with the court
and it shall become a part of the court record.
(c) This section applies to all felony convictions.
1192. Upon a plea of guilty, or upon conviction by the court
without a jury, of a crime or attempted crime distinguished or
divided into degrees, the court must, before passing sentence,
determine the degree. Upon the failure of the court to so determine,
the degree of the crime or attempted crime of which the defendant is
guilty, shall be deemed to be of the lesser degree.
1192.1. Upon a plea of guilty to an information or indictment
accusing the defendant of a crime or attempted crime divided into
degrees when consented to by the prosecuting attorney in open court
and approved by the court, such plea may specify the degree thereof
and in such event the defendant cannot be punished for a higher
degree of the crime or attempted crime than the degree specified.
1192.2. Upon a plea of guilty before a committing magistrate as
provided in Section 859a, to a crime or attempted crime divided into
degrees, when consented to by the prosecuting attorney in open court
and approved by such magistrate, such plea may specify the degree
thereof and in such event, the defendant cannot be punished for a
higher degree of the crime or attempted crime than the degree
specified.
1192.3. (a) A plea of guilty or nolo contendere to an accusatory
pleading charging a public offense, other than a felony specified in
Section 1192.5 or 1192.7, which public offense did not result in
damage for which restitution may be ordered, made on the condition
that charges be dismissed for one or more public offenses arising
from the same or related course of conduct by the defendant which did
result in damage for which restitution may be ordered, may specify
the payment of restitution by the defendant as a condition of the
plea or any probation granted pursuant thereto, so long as the plea
is freely and voluntarily made, there is factual basis for the plea,
and the plea and all conditions are approved by the court.
(b) If restitution is imposed which is attributable to a count
dismissed pursuant to a plea bargain, as described in this section,
the court shall obtain a waiver pursuant to People v. Harvey (1979)
25 Cal. 3d 754 from the defendant as to the dismissed count.
1192.4. If the defendant's plea of guilty pursuant to Section
1192.1 or 1192.2 is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter such plea or pleas as would otherwise have
been available. The plea so withdrawn may not be received in evidence
in any criminal, civil, or special action or proceeding of any
nature, including proceedings before agencies, commissions, boards,
and tribunals.
1192.5. Upon a plea of guilty or nolo contendere to an accusatory
pleading charging a felony, other than a 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, Section 286 by
force, violence, duress, menace or threat of great bodily harm,
subdivision (b) of Section 288, Section 288a by force, violence,
duress, menace or threat of great bodily harm, or subdivision (a) of
Section 289, the plea may specify the punishment to the same extent
as it may be specified by the jury on a plea of not guilty or fixed
by the court on a plea of guilty, nolo contendere, or not guilty, and
may specify the exercise by the court thereafter of other powers
legally available to it.
Where the plea is accepted by the prosecuting attorney in open
court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea
to a punishment more severe than that specified in the plea and the
court may not proceed as to the plea other than as specified in the
plea.
If the court approves of the plea, it shall inform the defendant
prior to the making of the plea that (1) its approval is not binding,
(2) it may, at the time set for the hearing on the application for
probation or pronouncement of judgment, withdraw its approval in the
light of further consideration of the matter, and (3) in that case,
the defendant shall be permitted to withdraw his or her plea if he or
she desires to do so. The court shall also cause an inquiry to be
made of the defendant to satisfy itself that the plea is freely and
voluntarily made, and that there is a factual basis for the plea.
If the plea is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter the plea or pleas as would otherwise have
been available.
If the plea is withdrawn or deemed withdrawn, it may not be
received in evidence in any criminal, civil, or special action or
proceeding of any nature, including proceedings before agencies,
commissions, boards, and tribunals.
1192.6. (a) In each felony case in which the charges contained in
the original accusatory pleading are amended or dismissed, the record
shall contain a statement explaining the reason for the amendment or
dismissal.
(b) In each felony case in which the prosecuting attorney seeks a
dismissal of a charge in the complaint, indictment, or information,
he or she shall state the specific reasons for the dismissal in open
court, on the record.
(c) When, upon a plea of guilty or nolo contendere to an
accusatory pleading charging a felony, whether or not that plea is
entered pursuant to Section 1192.5, the prosecuting attorney
recommends what punishment the court should impose or how it should
exercise any of the powers legally available to it, the prosecuting
attorney shall state the specific reasons for the recommendation in
open court, on the record. The reasons for the recommendation shall
be transcribed and made part of the court file.
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) 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.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining 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. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(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:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
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; (5) 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; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (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; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) 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;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) 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 Section
11100 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;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) 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; (32) 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;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 12034; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(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.
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) 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.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining 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. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(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:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
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; (5) 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; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (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; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) 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;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) 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 Section
11100 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;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) 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; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Section 245.2, 245.3, or 245.5; (33)
discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 26100; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(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.
1192.8. (a) For purposes of subdivision (c) of Section 1192.7,
"serious felony" also means any violation of Section 191.5, paragraph
(1) of subdivision (c) of Section 192, subdivision (a), (b), or (c)
of Section 192.5 of this code, or Section 2800.3, subdivision (b) of
Section 23104, or Section 23153 of the Vehicle Code, when any of
these offenses involve the personal infliction of great bodily injury
on any person other than an accomplice, or the personal use of a
dangerous or deadly weapon, within the meaning of paragraph (8) or
(23) of subdivision (c) of Section 1192.7.
(b) It is the intent of the Legislature, in enacting subdivision
(a), to codify the court decisions of People v. Gonzales, 29 Cal.
App. 4th 1684, and People v. Bow, 13 Cal. App. 4th 1551, and to
clarify that the crimes specified in subdivision (a) have always
been, and continue to be, serious felonies within the meaning of
subdivision (c) of Section 1192.7.
1193. Judgment upon persons convicted of commission of crime shall
be pronounced as follows:
(a) If the conviction is for a felony, the defendant shall be
personally present when judgment is pronounced against him or her,
unless the defendant, in open court and on the record, or in a
notarized writing, requests that judgment be pronounced against him
or her in his or her absence, and that he or she be represented by an
attorney when judgment is pronounced, and the court approves his or
her absence during the pronouncement of judgment, or unless, after
the exercise of reasonable diligence to procure the presence of the
defendant, the court shall find that it will be in the interest of
justice that judgment be pronounced in his or her absence; provided,
that when any judgment imposing the death penalty has been affirmed
by the appellate court, sentence may be reimposed upon the defendant
in his or her absence by the court from which the appeal was taken,
and in the following manner: upon receipt by the superior court from
which the appeal is taken of the certificate of the appellate court
affirming the judgment, the judge of the superior court shall
forthwith make and cause to be entered an order pronouncing sentence
against the defendant, and a warrant signed by the judge, and
attested by the clerk under the seal of the court, shall be drawn,
and it shall state the conviction and judgment and appoint a day upon
which the judgment shall be executed, which shall not be less than
60 days nor more than 90 days from the time of making the order; and
that, within five days thereafter, a certified copy of the order,
attested by the clerk under the seal of the court, and attached to
the warrant, shall, for the purpose of execution, be transmitted by
registered mail to the warden of the state prison having the custody
of the defendant and certified copies thereof shall be transmitted by
registered mail to the Governor; and provided further, that when any
judgment imposing the death penalty has been affirmed and sentence
has been reimposed as above provided there shall be no appeal from
the order fixing the time for and directing the execution of the
judgment as herein provided. If a pro se defendant requests that
judgment in a noncapital case be pronounced against him or her in his
or her absence, the court shall appoint an attorney to represent the
defendant in the in absentia sentencing.
(b) If the conviction be of a misdemeanor, judgment may be
pronounced against the defendant in his absence.
1194. When the defendant is in custody, the Court may direct the
officer in whose custody he is to bring him before it for judgment,
and the officer must do so.
1195. If the defendant has been released on bail, or has deposited
money or property instead thereof, and does not appear for judgment
when his personal appearance is necessary, the court, in addition to
the forfeiture of the undertaking of bail, or of the money or
property deposited, must, on application of the prosecuting attorney,
direct the issuance of a bench warrant for the arrest of the
defendant.
If the defendant, who is on bail, does appear for judgment and
judgment is pronounced upon him or probation is granted to him, then
the bail shall be exonerated or, if money or property has been
deposited instead of bail, it must be returned to the defendant or to
the person or persons found by the court to have deposited said
money or property on behalf of said defendant.
1196. (a) The clerk must, at any time after the order, issue a
bench warrant into one or more counties.
(b) The clerk shall require the appropriate agency to enter each
bench warrant issued on a private surety-bonded felony case into the
national warrant system (National Crime Information Center (NCIC)).
If the appropriate agency fails to enter the bench warrant into the
national warrant system (NCIC), and the court finds that this failure
prevented the surety or bond agent from surrendering the fugitive
into custody, prevented the fugitive from being arrested or taken
into custody, or resulted in the fugitive's subsequent release from
custody, the court having jurisdiction over the bail shall, upon
petition, set aside the forfeiture of the bond and declare all
liability on the bail bond to be exonerated.
1197. The bench warrant must be substantially in the following
form:
County of ____
The people of the State of California to any peace officer in this
State: ______ (name of defendant) having been on the ____ day of
____, 19_, duly convicted in the ____ court of ____ (naming the
court) of the crime of ____ (designating it generally), you are
therefore commanded forthwith to arrest the above named defendant and
bring him before that court for judgment.
Given under my hand with the seal of said court affixed, this ____
day of ____, 19_.
By order of said court.
____________________
(SEAL) Clerk (or Judge, or Justice)
1198. The bench warrant may be served in any county in the same
manner as a warrant of arrest.
1199. Whether the bench warrant is served in the county in which it
was issued or in another county, the officer must arrest the
defendant and bring him before the court, or deliver him to any peace
officer of the county from which the warrant issued, who must bring
him before said court according to the command thereof.
1200. When the defendant appears for judgment he must be informed
by the Court, or by the Clerk, under its direction, of the nature of
the charge against him and of his plea, and the verdict, if any
thereon, and must be asked whether he has any legal cause to show why
judgment should not be pronounced against him.
1201. He or she may show, for cause against the judgment:
(a) That he or she is insane; and if, in the opinion of the court,
there is reasonable ground for believing him or her insane, the
question of insanity shall be tried as provided in Chapter 6
(commencing with Section 1367) of Title 10 of Part 2. If, upon the
trial of that question, the jury finds that he or she is sane,
judgment shall be pronounced, but if they find him or her insane, he
or she shall be committed to the state hospital for the care and
treatment of the insane, until he or she becomes sane; and when
notice is given of that fact, as provided in Section 1372, he or she
shall be brought before the court for judgment.
(b) That he or she has good cause to offer, either in arrest of
judgment or for a new trial; in which case the court may, in its
discretion, order the judgment to be deferred, and proceed to decide
upon the motion in arrest of judgment or for a new trial.
1201.3. (a) Upon the conviction of a defendant for a sexual offense
involving a minor victim, or in the case of a minor appearing in
juvenile court if a petition is admitted or sustained for a sexual
offense involving a minor victim, the court is authorized to issue
orders that would prohibit the defendant or juvenile, for a period up
to 10 years, from harassing, intimidating, or threatening the victim
or the victim's family members or spouse.
(b) No order issued pursuant to this section shall be interpreted
to apply to counsel acting on behalf of the defendant or juvenile, or
to investigators working on behalf of counsel, in an action relating
to a conviction, petition in juvenile court, or any civil action
arising therefrom, provided however, that no counsel or investigator
shall harass or threaten any person protected by an order issued
pursuant to subdivision (a).
(c) Notice of the intent to request an order pursuant to this
section shall be given to counsel for the defendant or juvenile by
the prosecutor or the court at the time of conviction, or disposition
of the petition in juvenile court, and counsel shall have adequate
time in which to respond to the request before the order is made.
(d) A violation of an order issued pursuant to subdivision (a) is
punishable as provided in Section 166.
1201.5. Any motions made subsequent to judgment must be made only
upon written notice served upon the prosecution at least three days
prior to the date of hearing thereon. No affidavit or other writing
shall be presented or considered in support thereof unless a copy of
the same has been duly served upon the prosecution at least three
days prior to a hearing thereon. Any appeal from an order entered
upon a motion made other than as herein provided, must be dismissed
by the court.
1202. If no sufficient cause is alleged or appears to the court at
the time fixed for pronouncing judgment, as provided in Section 1191,
why judgment should not be pronounced, it shall thereupon be
rendered; and if not rendered or pronounced within the time so fixed
or to which it is continued under the provisions of Section 1191,
then the defendant shall be entitled to a new trial. If the court
shall refuse to hear a defendant's motion for a new trial or when
made shall neglect to determine such motion before pronouncing
judgment or the making of an order granting probation, then the
defendant shall be entitled to a new trial.
1202a. If the judgment is for imprisonment in the state prison the
judgment shall direct that the defendant be delivered into the
custody of the Director of Corrections at the state prison or
institution designated by the Director of Corrections as the place
for the reception of persons convicted of felonies, except where the
judgment is for death in which case the defendant shall be taken to
the warden of the California State Prison at San Quentin.
Unless a different place or places are so designated by the
Director of Corrections, the judgment shall direct that the defendant
be delivered into the custody of the Director of Corrections at the
California State Prison at San Quentin. The Director of Corrections
shall designate a place or places for the reception of persons
convicted of felonies by order, which order or orders shall be served
by registered mail, return receipt requested, upon each judge of
each superior court in the state. The Director of Corrections may
change the place or places of commitment by the issuance of a new
order. Nothing contained in this section affects any provision of
Section 3400.
1202.05. (a) Whenever a person is sentenced to the state prison on
or after January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of
those offenses is a child under the age of 18 years, the court shall
prohibit all visitation between the defendant and the child victim.
The court's order shall be transmitted to the Department of
Corrections, to the parents, adoptive parents, or guardians, or a
combination thereof, of the child victim, and to the child victim. If
any parent, adoptive parent, or legal guardian of the child victim,
or the child victim objects to the court's order, he or she may
request a hearing on the matter. Any request for a hearing on the
matter filed with the sentencing court shall be referred to the
appropriate juvenile court pursuant to Section 362.6 of the Welfare
and Institutions Code.
(b) The Department of Corrections is authorized to notify the
sentencing court of persons who were sentenced to the state prison
prior to January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, when the victim of one or more of
those offenses was a child under the age of 18 years.
Upon notification by the department pursuant to this subdivision,
the sentencing court shall prohibit all visitation between the
defendant and the child victim, according to the procedures specified
in subdivision (a).
1202.1. (a) Notwithstanding Sections 120975 and 120990 of the
Health and Safety Code, the court shall order every person who is
convicted of, or adjudged by the court to be a person described by
Section 601 or 602 of the Welfare and Institutions Code as provided
in Section 725 of the Welfare and Institutions Code by reason of a
violation of, a sexual offense listed in subdivision (e), whether or
not a sentence or fine is imposed or probation is granted, to submit
to a blood or oral mucosal transudate saliva test for evidence of
antibodies to the probable causative agent of acquired immune
deficiency syndrome (AIDS) within 180 days of the date of conviction.
Each person tested under this section shall be informed of the
results of the blood or oral mucosal transudate saliva test.
(b) Notwithstanding Section 120980 of the Health and Safety Code,
the results of the blood or oral mucosal transudate saliva test to
detect antibodies to the probable causative agent of AIDS shall be
transmitted by the clerk of the court to the Department of Justice
and the local health officer.
(c) Notwithstanding Section 120980 of the Health and Safety Code,
the Department of Justice shall provide the results of a test or
tests as to persons under investigation or being prosecuted under
Section 647f or 12022.85, if the results are on file with the
department, to the defense attorney upon request and the results also
shall be available to the prosecuting attorney upon request for the
purpose of either preparing counts for a subsequent offense under
Section 647f or sentence enhancement under Section 12022.85 or
complying with subdivision (d).
(d) (1) In every case in which a person is convicted of a sexual
offense listed in subdivision (e) or adjudged by the court to be a
person described by Section 601 or 602 of the Welfare and
Institutions Code as provided in Section 725 of the Welfare and
Institutions Code by reason of the commission of a sexual offense
listed in subdivision (e), the prosecutor or the prosecutor's
victim-witness assistance bureau shall advise the victim of his or
her right to receive the results of the blood or oral mucosal
transudate saliva test performed pursuant to subdivision (a). The
prosecutor or the prosecutor's victim-witness assistance bureau shall
refer the victim to the local health officer for counseling to
assist him or her in understanding the extent to which the particular
circumstances of the crime may or may not have placed the victim at
risk of transmission of the human immunodeficiency virus (HIV) from
the accused, to ensure that the victim understands the limitations
and benefits of current tests for HIV, and to assist the victim in
determining whether he or she should make the request.
(2) Notwithstanding any other law, upon the victim's request, the
local health officer shall be responsible for disclosing test results
to the victim who requested the test and the person who was tested.
However, as specified in subdivision (g), positive test results shall
not be disclosed to the victim or the person who was tested without
offering or providing professional counseling appropriate to the
circumstances as follows:
(A) To help the victim understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the perpetrator.
(B) To ensure that the victim understands both the benefits and
limitations of the current tests for HIV.
(C) To obtain referrals to appropriate health care and support
services.
(e) For purposes of this section, "sexual offense" includes any of
the following:
(1) Rape in violation of Section 261 or 264.1.
(2) Unlawful intercourse with a person under 18 years of age in
violation of Section 261.5 or 266c.
(3) Rape of a spouse in violation of Section 262 or 264.1.
(4) Sodomy in violation of Section 266c or 286.
(5) Oral copulation in violation of Section 266c or 288a.
(6) (A) Any of the following offenses if the court finds that
there is probable cause to believe that blood, semen, or any other
bodily fluid capable of transmitting HIV has been transferred from
the defendant to the victim:
(i) Sexual penetration in violation of Section 264.1, 266c, or
289.
(ii) Aggravated sexual assault of a child in violation of Section
269.
(iii) Lewd or lascivious conduct with a child in violation of
Section 288.
(iv) Continuous sexual abuse of a child in violation of Section
288.5.
(v) The attempt to commit any offense described in clauses (i) to
(iv), inclusive.
(B) For purposes of this paragraph, the court shall note its
finding on the court docket and minute order if one is prepared.
(f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (a) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
person who is tested unless any initially reactive test result has
been confirmed by appropriate confirmatory tests for positive
reactors.
(g) The local health officer shall be responsible for disclosing
test results to the victim who requested the test and the person who
was tested. However, positive test results shall not be disclosed to
the victim or the person who was tested without offering or providing
professional counseling appropriate to the circumstances.
(h) The local health officer and the victim shall comply with all
laws and policies relating to medical confidentiality, subject to the
disclosure authorized by subdivisions (g) and (i).
(i) Any victim who receives information from the local health
officer pursuant to subdivision (g) may disclose the information as
he or she deems necessary to protect his or her health and safety or
the health and safety of his or her family or sexual partner.
(j) Any person who transmits test results or discloses information
pursuant to this section shall be immune from civil liability for
any action taken in compliance with this section.
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the two
hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court
may specify that funds confiscated at the time of the defendant's
arrest, except for funds confiscated pursuant to Section 11469 of the
Health and Safety Code, be applied to the restitution fine if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two hundred-dollar ($200) or one hundred-dollar
($100) minimum, the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or his
or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on
the amount of the fine shall not be required. A separate hearing for
the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12 (commencing with
Section 76000) of Title 8 of the Government Code, or the state
surcharge authorized in Section 1465.7, and shall be deposited in the
Restitution Fund in the State Treasury.
(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant's conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so, and states them on the record. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) of
Part 4 of Division 3 of Title 2 of the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include any commission income as well as any
base wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include any
commission income as well as any base wages. Commission income shall
be established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5,
including, but not limited to, a home security device or system, or
replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure sha
1191. In a felony case, after a plea, finding, or verdict of
guilty, or after a finding or verdict against the defendant on a plea
of a former conviction or acquittal, or once in jeopardy, the court
shall appoint a time for pronouncing judgment, which shall be within
20 judicial days after the verdict, finding, or plea of guilty,
during which time the court shall refer the case to the probation
officer for a report if eligible for probation and pursuant to
Section 1203. However, the court may extend the time not more than 10
days for the purpose of hearing or determining any motion for a new
trial, or in arrest of judgment, and may further extend the time
until the probation officer's report is received and until any
proceedings for granting or denying probation have been disposed of.
If, in the opinion of the court, there is a reasonable ground for
believing a defendant insane, the court may extend the time for
pronouncing sentence until the question of insanity has been heard
and determined, as provided in this code. If the court orders the
defendant placed in a diagnostic facility pursuant to Section
1203.03, the time otherwise allowed by this section for pronouncing
judgment is extended by a period equal to (1) the number of days
which elapse between the date of the order and the date on which
notice is received from the Director of Corrections advising whether
or not the Department of Corrections will receive the defendant in
the facility, and (2) if the director notifies the court that it will
receive the defendant, the time which elapses until his or her
return to the court from the facility.
1191.1. The victim of any crime, or the parents or guardians of the
victim if the victim is a minor, or the next of kin of the victim if
the victim has died, have the right to attend all sentencing
proceedings under this chapter and shall be given adequate notice by
the probation officer of all sentencing proceedings concerning the
person who committed the crime.
The victim, or up to two of the victim's parents or guardians if
the victim is a minor, or the next of kin of the victim if the victim
has died, have the right to appear, personally or by counsel, at the
sentencing proceeding and to reasonably express his, her, or their
views concerning the crime, the person responsible, and the need for
restitution. The court in imposing sentence shall consider the
statements of victims, parents or guardians, and next of kin made
pursuant to this section and shall state on the record its conclusion
concerning whether the person would pose a threat to public safety
if granted probation.
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.
1191.10. The definition of the term "victim" as used in Section
1191.1 includes any insurer or employer who was the victim of workers'
compensation fraud for the crimes specified in Section 549 of this
code, Sections 2314 and 6152 of the Business and Professions Code,
Sections 1871.4, 11760, and 11880 of the Insurance Code, and Section
3215 of the Labor Code.
1191.15. (a) The court may permit the victim of any crime, or his
or her parent or guardian if the victim is a minor, or the next of
kin of the victim if the victim has died, to file with the court a
written, audiotaped, or videotaped statement, or statement stored on
a CD Rom, DVD, or any other recording medium acceptable to the court,
expressing his or her views concerning the crime, the person
responsible, and the need for restitution, in lieu of or in addition
to the person personally appearing at the time of judgment and
sentence. The court shall consider the statement filed with the court
prior to imposing judgment and sentence.
Whenever an audio or video statement or statement stored on a CD
Rom, DVD, or other medium is filed with the court, a written
transcript of the statement shall also be provided by the person
filing the statement, and shall be made available as a public record
of the court after the judgment and sentence have been imposed.
(b) Whenever a written, audio, or video statement or statement
stored on a CD Rom, DVD, or other medium is filed with the court, it
shall remain sealed until the time set for imposition of judgment and
sentence except that the court, the probation officer, and counsel
for the parties may view and listen to the statement not more than
two court days prior to the date set for imposition of judgment and
sentence.
(c) No person may, and no court shall, permit any person to
duplicate, copy, or reproduce by any audio or visual means any
statement submitted to the court under the provisions of this
section.
(d) Nothing in this section shall be construed to prohibit the
prosecutor from representing to the court the views of the victim or
his or her parent or guardian or the next of kin.
(e) In the event the court permits an audio or video statement or
statement stored on a CD Rom, DVD, or other medium to be filed, the
court shall not be responsible for providing any equipment or
resources needed to assist the victim in preparing the statement.
1191.16. The victim of any crime, or the parents or guardians of
the victim if the victim is a minor, or the next of kin of the victim
if the victim has died, who choose to exercise their rights with
respect to sentencing proceedings as described in Section 1191.1 may,
in any case where the defendant is subject to an indeterminate term
of imprisonment, have their statements simultaneously recorded and
preserved by means of videotape, videodisc, or any other means of
preserving audio and video, if they notify the prosecutor in advance
of the sentencing hearing and the prosecutor reasonably is able to
provide the means to record and preserve the statement. If a video
and audio record is developed, that record shall be maintained and
preserved by the prosecution and used in accordance with the
regulations of the Board of Prison Terms at any hearing to review
parole suitability or the setting of a parole date.
1191.2. In providing notice to the victim pursuant to Section
1191.1, the probation officer shall also provide the victim with
information concerning the victim's right to civil recovery against
the defendant, the requirement that the court order restitution for
the victim, the victim's right to receive a copy of the restitution
order from the court and to enforce the restitution order as a civil
judgment, the victim's responsibility to furnish the probation
department, district attorney, and court with information relevant to
his or her losses, and the victim's opportunity to be compensated
from the Restitution Fund if eligible under Article 1 (commencing
with Section 13959) of Chapter 5 of Part 4 of Division 3 of Title 2
of the Government Code. This information shall be in the form of
written material prepared by the Judicial Council in consultation
with the California Victim Compensation and Government Claims Board,
shall include the relevant sections of the Penal Code, and shall be
provided to each victim for whom the probation officer has a current
mailing address.
1191.21. (a) (1) The California Emergency Management Agency shall
develop and make available a "notification of eligibility" card for
victims and derivative victims of crimes as defined in subdivision
(c) of Section 13960 of the Government Code that includes, but is not
limited to, the following information:
"If you have been the victim of a crime that meets the required
definition, you or others may be eligible to receive payment from the
California State Restitution Fund for losses directly resulting from
the crime. To learn about eligibility and receive an application to
receive payments, call the Victims of Crime Program at (800) 777-9229
or call your local county Victim Witness Assistance Center."
(2) At a minimum, the California Emergency Management Agency shall
develop a template available for downloading on its Internet Web
site the information requested in subdivision (b).
(b) In a case involving a crime as defined in subdivision (c) of
Section 13960 of the Government Code, the law enforcement officer
with primary responsibility for investigating the crime committed
against the victim and the district attorney may provide the
"notification of eligibility" card to the victim and derivative
victim of a crime.
(c) The terms "victim" and "derivative victim" shall be given the
same meaning given those terms in Section 13960 of the Government
Code.
1191.25. The prosecution shall make a good faith attempt to notify
any victim of a crime which was committed by, or is alleged to have
been committed by, an in-custody informant, as defined in subdivision
(a) of Section 1127a, within a reasonable time before the in-custody
informant is called to testify. The notice shall include information
concerning the prosecution's intention to offer the in-custody
informant a modification or reduction in sentence or dismissal of the
case or early parole in exchange for the in-custody informant's
testimony in another case. The notification or attempt to notify the
victim shall be made prior to the commencement of the trial in which
the in-custody informant is to testify where the intention to call
him or her is known at that time, but in no case shall the notice be
made later than the time the in-custody informant is called to the
stand.
Nothing contained in this section is intended to affect the right
of the people and the defendant to an expeditious disposition of a
criminal proceeding, as provided in Section 1050. The victim of any
case alleged to have been committed by the in-custody informant may
exercise his or her right to appear at the sentencing of the
in-custody informant pursuant to Section 1191.1, but the victim shall
not have a right to intervene in the trial in which the in-custody
informant is called to testify.
1191.3. (a) At the time of sentencing or pronouncement of judgment
in which sentencing is imposed, the court shall make an oral
statement that statutory law permits the award of conduct and
worktime credits up to one-third or one-half of the sentence that is
imposed by the court, that the award and calculation of credits is
determined by the sheriff in cases involving imprisonment in county
jails and by the Department of Corrections in cases involving
imprisonment in the state prison, and that credit for presentence
incarceration served by the defendant is calculated by the probation
department under current state law.
As used in this section, "victim" means the victim of the offense,
the victim's parent or guardian if the victim is a minor, or the
victim's next of kin.
(b) The probation officer shall provide a general estimate of the
credits to which the defendant may be entitled for previous time
served, and conduct or worktime credits authorized under Sections
2931, 2933, or 4019, and shall inform the victim pursuant to Section
1191.1. The probation officer shall file this estimate with the court
and it shall become a part of the court record.
(c) This section applies to all felony convictions.
1192. Upon a plea of guilty, or upon conviction by the court
without a jury, of a crime or attempted crime distinguished or
divided into degrees, the court must, before passing sentence,
determine the degree. Upon the failure of the court to so determine,
the degree of the crime or attempted crime of which the defendant is
guilty, shall be deemed to be of the lesser degree.
1192.1. Upon a plea of guilty to an information or indictment
accusing the defendant of a crime or attempted crime divided into
degrees when consented to by the prosecuting attorney in open court
and approved by the court, such plea may specify the degree thereof
and in such event the defendant cannot be punished for a higher
degree of the crime or attempted crime than the degree specified.
1192.2. Upon a plea of guilty before a committing magistrate as
provided in Section 859a, to a crime or attempted crime divided into
degrees, when consented to by the prosecuting attorney in open court
and approved by such magistrate, such plea may specify the degree
thereof and in such event, the defendant cannot be punished for a
higher degree of the crime or attempted crime than the degree
specified.
1192.3. (a) A plea of guilty or nolo contendere to an accusatory
pleading charging a public offense, other than a felony specified in
Section 1192.5 or 1192.7, which public offense did not result in
damage for which restitution may be ordered, made on the condition
that charges be dismissed for one or more public offenses arising
from the same or related course of conduct by the defendant which did
result in damage for which restitution may be ordered, may specify
the payment of restitution by the defendant as a condition of the
plea or any probation granted pursuant thereto, so long as the plea
is freely and voluntarily made, there is factual basis for the plea,
and the plea and all conditions are approved by the court.
(b) If restitution is imposed which is attributable to a count
dismissed pursuant to a plea bargain, as described in this section,
the court shall obtain a waiver pursuant to People v. Harvey (1979)
25 Cal. 3d 754 from the defendant as to the dismissed count.
1192.4. If the defendant's plea of guilty pursuant to Section
1192.1 or 1192.2 is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter such plea or pleas as would otherwise have
been available. The plea so withdrawn may not be received in evidence
in any criminal, civil, or special action or proceeding of any
nature, including proceedings before agencies, commissions, boards,
and tribunals.
1192.5. Upon a plea of guilty or nolo contendere to an accusatory
pleading charging a felony, other than a 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, Section 286 by
force, violence, duress, menace or threat of great bodily harm,
subdivision (b) of Section 288, Section 288a by force, violence,
duress, menace or threat of great bodily harm, or subdivision (a) of
Section 289, the plea may specify the punishment to the same extent
as it may be specified by the jury on a plea of not guilty or fixed
by the court on a plea of guilty, nolo contendere, or not guilty, and
may specify the exercise by the court thereafter of other powers
legally available to it.
Where the plea is accepted by the prosecuting attorney in open
court and is approved by the court, the defendant, except as
otherwise provided in this section, cannot be sentenced on the plea
to a punishment more severe than that specified in the plea and the
court may not proceed as to the plea other than as specified in the
plea.
If the court approves of the plea, it shall inform the defendant
prior to the making of the plea that (1) its approval is not binding,
(2) it may, at the time set for the hearing on the application for
probation or pronouncement of judgment, withdraw its approval in the
light of further consideration of the matter, and (3) in that case,
the defendant shall be permitted to withdraw his or her plea if he or
she desires to do so. The court shall also cause an inquiry to be
made of the defendant to satisfy itself that the plea is freely and
voluntarily made, and that there is a factual basis for the plea.
If the plea is not accepted by the prosecuting attorney and
approved by the court, the plea shall be deemed withdrawn and the
defendant may then enter the plea or pleas as would otherwise have
been available.
If the plea is withdrawn or deemed withdrawn, it may not be
received in evidence in any criminal, civil, or special action or
proceeding of any nature, including proceedings before agencies,
commissions, boards, and tribunals.
1192.6. (a) In each felony case in which the charges contained in
the original accusatory pleading are amended or dismissed, the record
shall contain a statement explaining the reason for the amendment or
dismissal.
(b) In each felony case in which the prosecuting attorney seeks a
dismissal of a charge in the complaint, indictment, or information,
he or she shall state the specific reasons for the dismissal in open
court, on the record.
(c) When, upon a plea of guilty or nolo contendere to an
accusatory pleading charging a felony, whether or not that plea is
entered pursuant to Section 1192.5, the prosecuting attorney
recommends what punishment the court should impose or how it should
exercise any of the powers legally available to it, the prosecuting
attorney shall state the specific reasons for the recommendation in
open court, on the record. The reasons for the recommendation shall
be transcribed and made part of the court file.
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) 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.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining 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. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(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:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
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; (5) 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; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (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; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) 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;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) 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 Section
11100 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;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) 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; (32) 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;
(33) discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 12034; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(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.
1192.7. (a) (1) It is the intent of the Legislature that district
attorneys prosecute violent sex crimes under statutes that provide
sentencing under a "one strike," "three strikes" or habitual sex
offender statute instead of engaging in plea bargaining over those
offenses.
(2) 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.
(3) If the indictment or information charges the defendant with a
violent sex crime, as listed in subdivision (c) of Section 667.61,
that could be prosecuted under Sections 269, 288.7, subdivisions (b)
through (i) of Section 667, Section 667.61, or 667.71, plea
bargaining 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. At the time of presenting the
agreement to the court, the district attorney shall state on the
record why a sentence under one of those sections was not sought.
(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:
(1) Murder or voluntary manslaughter; (2) mayhem; (3) rape; (4)
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; (5) 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; (6) lewd or
lascivious act on a child under 14 years of age; (7) any felony
punishable by death or imprisonment in the state prison for life; (8)
any felony in which the defendant personally inflicts great bodily
injury on any person, other than an accomplice, or any felony in
which the defendant personally uses a firearm; (9) attempted murder;
(10) assault with intent to commit rape or robbery; (11) assault with
a deadly weapon or instrument on a peace officer; (12) assault by a
life prisoner on a noninmate; (13) assault with a deadly weapon by an
inmate; (14) arson; (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; (17) exploding a destructive device or any explosive with
intent to murder; (18) any burglary of the first degree; (19) 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;
(23) any felony in which the defendant personally used a dangerous or
deadly weapon; (24) 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 Section
11100 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;
(26) grand theft involving a firearm; (27) carjacking; (28) any
felony offense, which would also constitute a felony violation of
Section 186.22; (29) assault with the intent to commit mayhem, rape,
sodomy, or oral copulation, in violation of Section 220; (30)
throwing acid or flammable substances, in violation of Section 244;
(31) 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; (32) assault with a deadly
weapon against a public transit employee, custodial officer, or
school employee, in violation of Section 245.2, 245.3, or 245.5; (33)
discharge of a firearm at an inhabited dwelling, vehicle, or
aircraft, in violation of Section 246; (34) commission of rape or
sexual penetration in concert with another person, in violation of
Section 264.1; (35) continuous sexual abuse of a child, in violation
of Section 288.5; (36) shooting from a vehicle, in violation of
subdivision (c) or (d) of Section 26100; (37) intimidation of victims
or witnesses, in violation of Section 136.1; (38) criminal threats,
in violation of Section 422; (39) any attempt to commit a crime
listed in this subdivision other than an assault; (40) any violation
of Section 12022.53; (41) a violation of subdivision (b) or (c) of
Section 11418; and (42) any conspiracy to commit an offense described
in this subdivision.
(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.
1192.8. (a) For purposes of subdivision (c) of Section 1192.7,
"serious felony" also means any violation of Section 191.5, paragraph
(1) of subdivision (c) of Section 192, subdivision (a), (b), or (c)
of Section 192.5 of this code, or Section 2800.3, subdivision (b) of
Section 23104, or Section 23153 of the Vehicle Code, when any of
these offenses involve the personal infliction of great bodily injury
on any person other than an accomplice, or the personal use of a
dangerous or deadly weapon, within the meaning of paragraph (8) or
(23) of subdivision (c) of Section 1192.7.
(b) It is the intent of the Legislature, in enacting subdivision
(a), to codify the court decisions of People v. Gonzales, 29 Cal.
App. 4th 1684, and People v. Bow, 13 Cal. App. 4th 1551, and to
clarify that the crimes specified in subdivision (a) have always
been, and continue to be, serious felonies within the meaning of
subdivision (c) of Section 1192.7.
1193. Judgment upon persons convicted of commission of crime shall
be pronounced as follows:
(a) If the conviction is for a felony, the defendant shall be
personally present when judgment is pronounced against him or her,
unless the defendant, in open court and on the record, or in a
notarized writing, requests that judgment be pronounced against him
or her in his or her absence, and that he or she be represented by an
attorney when judgment is pronounced, and the court approves his or
her absence during the pronouncement of judgment, or unless, after
the exercise of reasonable diligence to procure the presence of the
defendant, the court shall find that it will be in the interest of
justice that judgment be pronounced in his or her absence; provided,
that when any judgment imposing the death penalty has been affirmed
by the appellate court, sentence may be reimposed upon the defendant
in his or her absence by the court from which the appeal was taken,
and in the following manner: upon receipt by the superior court from
which the appeal is taken of the certificate of the appellate court
affirming the judgment, the judge of the superior court shall
forthwith make and cause to be entered an order pronouncing sentence
against the defendant, and a warrant signed by the judge, and
attested by the clerk under the seal of the court, shall be drawn,
and it shall state the conviction and judgment and appoint a day upon
which the judgment shall be executed, which shall not be less than
60 days nor more than 90 days from the time of making the order; and
that, within five days thereafter, a certified copy of the order,
attested by the clerk under the seal of the court, and attached to
the warrant, shall, for the purpose of execution, be transmitted by
registered mail to the warden of the state prison having the custody
of the defendant and certified copies thereof shall be transmitted by
registered mail to the Governor; and provided further, that when any
judgment imposing the death penalty has been affirmed and sentence
has been reimposed as above provided there shall be no appeal from
the order fixing the time for and directing the execution of the
judgment as herein provided. If a pro se defendant requests that
judgment in a noncapital case be pronounced against him or her in his
or her absence, the court shall appoint an attorney to represent the
defendant in the in absentia sentencing.
(b) If the conviction be of a misdemeanor, judgment may be
pronounced against the defendant in his absence.
1194. When the defendant is in custody, the Court may direct the
officer in whose custody he is to bring him before it for judgment,
and the officer must do so.
1195. If the defendant has been released on bail, or has deposited
money or property instead thereof, and does not appear for judgment
when his personal appearance is necessary, the court, in addition to
the forfeiture of the undertaking of bail, or of the money or
property deposited, must, on application of the prosecuting attorney,
direct the issuance of a bench warrant for the arrest of the
defendant.
If the defendant, who is on bail, does appear for judgment and
judgment is pronounced upon him or probation is granted to him, then
the bail shall be exonerated or, if money or property has been
deposited instead of bail, it must be returned to the defendant or to
the person or persons found by the court to have deposited said
money or property on behalf of said defendant.
1196. (a) The clerk must, at any time after the order, issue a
bench warrant into one or more counties.
(b) The clerk shall require the appropriate agency to enter each
bench warrant issued on a private surety-bonded felony case into the
national warrant system (National Crime Information Center (NCIC)).
If the appropriate agency fails to enter the bench warrant into the
national warrant system (NCIC), and the court finds that this failure
prevented the surety or bond agent from surrendering the fugitive
into custody, prevented the fugitive from being arrested or taken
into custody, or resulted in the fugitive's subsequent release from
custody, the court having jurisdiction over the bail shall, upon
petition, set aside the forfeiture of the bond and declare all
liability on the bail bond to be exonerated.
1197. The bench warrant must be substantially in the following
form:
County of ____
The people of the State of California to any peace officer in this
State: ______ (name of defendant) having been on the ____ day of
____, 19_, duly convicted in the ____ court of ____ (naming the
court) of the crime of ____ (designating it generally), you are
therefore commanded forthwith to arrest the above named defendant and
bring him before that court for judgment.
Given under my hand with the seal of said court affixed, this ____
day of ____, 19_.
By order of said court.
____________________
(SEAL) Clerk (or Judge, or Justice)
1198. The bench warrant may be served in any county in the same
manner as a warrant of arrest.
1199. Whether the bench warrant is served in the county in which it
was issued or in another county, the officer must arrest the
defendant and bring him before the court, or deliver him to any peace
officer of the county from which the warrant issued, who must bring
him before said court according to the command thereof.
1200. When the defendant appears for judgment he must be informed
by the Court, or by the Clerk, under its direction, of the nature of
the charge against him and of his plea, and the verdict, if any
thereon, and must be asked whether he has any legal cause to show why
judgment should not be pronounced against him.
1201. He or she may show, for cause against the judgment:
(a) That he or she is insane; and if, in the opinion of the court,
there is reasonable ground for believing him or her insane, the
question of insanity shall be tried as provided in Chapter 6
(commencing with Section 1367) of Title 10 of Part 2. If, upon the
trial of that question, the jury finds that he or she is sane,
judgment shall be pronounced, but if they find him or her insane, he
or she shall be committed to the state hospital for the care and
treatment of the insane, until he or she becomes sane; and when
notice is given of that fact, as provided in Section 1372, he or she
shall be brought before the court for judgment.
(b) That he or she has good cause to offer, either in arrest of
judgment or for a new trial; in which case the court may, in its
discretion, order the judgment to be deferred, and proceed to decide
upon the motion in arrest of judgment or for a new trial.
1201.3. (a) Upon the conviction of a defendant for a sexual offense
involving a minor victim, or in the case of a minor appearing in
juvenile court if a petition is admitted or sustained for a sexual
offense involving a minor victim, the court is authorized to issue
orders that would prohibit the defendant or juvenile, for a period up
to 10 years, from harassing, intimidating, or threatening the victim
or the victim's family members or spouse.
(b) No order issued pursuant to this section shall be interpreted
to apply to counsel acting on behalf of the defendant or juvenile, or
to investigators working on behalf of counsel, in an action relating
to a conviction, petition in juvenile court, or any civil action
arising therefrom, provided however, that no counsel or investigator
shall harass or threaten any person protected by an order issued
pursuant to subdivision (a).
(c) Notice of the intent to request an order pursuant to this
section shall be given to counsel for the defendant or juvenile by
the prosecutor or the court at the time of conviction, or disposition
of the petition in juvenile court, and counsel shall have adequate
time in which to respond to the request before the order is made.
(d) A violation of an order issued pursuant to subdivision (a) is
punishable as provided in Section 166.
1201.5. Any motions made subsequent to judgment must be made only
upon written notice served upon the prosecution at least three days
prior to the date of hearing thereon. No affidavit or other writing
shall be presented or considered in support thereof unless a copy of
the same has been duly served upon the prosecution at least three
days prior to a hearing thereon. Any appeal from an order entered
upon a motion made other than as herein provided, must be dismissed
by the court.
1202. If no sufficient cause is alleged or appears to the court at
the time fixed for pronouncing judgment, as provided in Section 1191,
why judgment should not be pronounced, it shall thereupon be
rendered; and if not rendered or pronounced within the time so fixed
or to which it is continued under the provisions of Section 1191,
then the defendant shall be entitled to a new trial. If the court
shall refuse to hear a defendant's motion for a new trial or when
made shall neglect to determine such motion before pronouncing
judgment or the making of an order granting probation, then the
defendant shall be entitled to a new trial.
1202a. If the judgment is for imprisonment in the state prison the
judgment shall direct that the defendant be delivered into the
custody of the Director of Corrections at the state prison or
institution designated by the Director of Corrections as the place
for the reception of persons convicted of felonies, except where the
judgment is for death in which case the defendant shall be taken to
the warden of the California State Prison at San Quentin.
Unless a different place or places are so designated by the
Director of Corrections, the judgment shall direct that the defendant
be delivered into the custody of the Director of Corrections at the
California State Prison at San Quentin. The Director of Corrections
shall designate a place or places for the reception of persons
convicted of felonies by order, which order or orders shall be served
by registered mail, return receipt requested, upon each judge of
each superior court in the state. The Director of Corrections may
change the place or places of commitment by the issuance of a new
order. Nothing contained in this section affects any provision of
Section 3400.
1202.05. (a) Whenever a person is sentenced to the state prison on
or after January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, and the victim of one or more of
those offenses is a child under the age of 18 years, the court shall
prohibit all visitation between the defendant and the child victim.
The court's order shall be transmitted to the Department of
Corrections, to the parents, adoptive parents, or guardians, or a
combination thereof, of the child victim, and to the child victim. If
any parent, adoptive parent, or legal guardian of the child victim,
or the child victim objects to the court's order, he or she may
request a hearing on the matter. Any request for a hearing on the
matter filed with the sentencing court shall be referred to the
appropriate juvenile court pursuant to Section 362.6 of the Welfare
and Institutions Code.
(b) The Department of Corrections is authorized to notify the
sentencing court of persons who were sentenced to the state prison
prior to January 1, 1993, for violating Section 261, 264.1, 266c,
285, 286, 288, 288a, 288.5, or 289, when the victim of one or more of
those offenses was a child under the age of 18 years.
Upon notification by the department pursuant to this subdivision,
the sentencing court shall prohibit all visitation between the
defendant and the child victim, according to the procedures specified
in subdivision (a).
1202.1. (a) Notwithstanding Sections 120975 and 120990 of the
Health and Safety Code, the court shall order every person who is
convicted of, or adjudged by the court to be a person described by
Section 601 or 602 of the Welfare and Institutions Code as provided
in Section 725 of the Welfare and Institutions Code by reason of a
violation of, a sexual offense listed in subdivision (e), whether or
not a sentence or fine is imposed or probation is granted, to submit
to a blood or oral mucosal transudate saliva test for evidence of
antibodies to the probable causative agent of acquired immune
deficiency syndrome (AIDS) within 180 days of the date of conviction.
Each person tested under this section shall be informed of the
results of the blood or oral mucosal transudate saliva test.
(b) Notwithstanding Section 120980 of the Health and Safety Code,
the results of the blood or oral mucosal transudate saliva test to
detect antibodies to the probable causative agent of AIDS shall be
transmitted by the clerk of the court to the Department of Justice
and the local health officer.
(c) Notwithstanding Section 120980 of the Health and Safety Code,
the Department of Justice shall provide the results of a test or
tests as to persons under investigation or being prosecuted under
Section 647f or 12022.85, if the results are on file with the
department, to the defense attorney upon request and the results also
shall be available to the prosecuting attorney upon request for the
purpose of either preparing counts for a subsequent offense under
Section 647f or sentence enhancement under Section 12022.85 or
complying with subdivision (d).
(d) (1) In every case in which a person is convicted of a sexual
offense listed in subdivision (e) or adjudged by the court to be a
person described by Section 601 or 602 of the Welfare and
Institutions Code as provided in Section 725 of the Welfare and
Institutions Code by reason of the commission of a sexual offense
listed in subdivision (e), the prosecutor or the prosecutor's
victim-witness assistance bureau shall advise the victim of his or
her right to receive the results of the blood or oral mucosal
transudate saliva test performed pursuant to subdivision (a). The
prosecutor or the prosecutor's victim-witness assistance bureau shall
refer the victim to the local health officer for counseling to
assist him or her in understanding the extent to which the particular
circumstances of the crime may or may not have placed the victim at
risk of transmission of the human immunodeficiency virus (HIV) from
the accused, to ensure that the victim understands the limitations
and benefits of current tests for HIV, and to assist the victim in
determining whether he or she should make the request.
(2) Notwithstanding any other law, upon the victim's request, the
local health officer shall be responsible for disclosing test results
to the victim who requested the test and the person who was tested.
However, as specified in subdivision (g), positive test results shall
not be disclosed to the victim or the person who was tested without
offering or providing professional counseling appropriate to the
circumstances as follows:
(A) To help the victim understand the extent to which the
particular circumstances of the crime may or may not have put the
victim at risk of transmission of HIV from the perpetrator.
(B) To ensure that the victim understands both the benefits and
limitations of the current tests for HIV.
(C) To obtain referrals to appropriate health care and support
services.
(e) For purposes of this section, "sexual offense" includes any of
the following:
(1) Rape in violation of Section 261 or 264.1.
(2) Unlawful intercourse with a person under 18 years of age in
violation of Section 261.5 or 266c.
(3) Rape of a spouse in violation of Section 262 or 264.1.
(4) Sodomy in violation of Section 266c or 286.
(5) Oral copulation in violation of Section 266c or 288a.
(6) (A) Any of the following offenses if the court finds that
there is probable cause to believe that blood, semen, or any other
bodily fluid capable of transmitting HIV has been transferred from
the defendant to the victim:
(i) Sexual penetration in violation of Section 264.1, 266c, or
289.
(ii) Aggravated sexual assault of a child in violation of Section
269.
(iii) Lewd or lascivious conduct with a child in violation of
Section 288.
(iv) Continuous sexual abuse of a child in violation of Section
288.5.
(v) The attempt to commit any offense described in clauses (i) to
(iv), inclusive.
(B) For purposes of this paragraph, the court shall note its
finding on the court docket and minute order if one is prepared.
(f) Any blood or oral mucosal transudate saliva tested pursuant to
subdivision (a) shall be subjected to appropriate confirmatory tests
to ensure accuracy of the first test results, and under no
circumstances shall test results be transmitted to the victim or the
person who is tested unless any initially reactive test result has
been confirmed by appropriate confirmatory tests for positive
reactors.
(g) The local health officer shall be responsible for disclosing
test results to the victim who requested the test and the person who
was tested. However, positive test results shall not be disclosed to
the victim or the person who was tested without offering or providing
professional counseling appropriate to the circumstances.
(h) The local health officer and the victim shall comply with all
laws and policies relating to medical confidentiality, subject to the
disclosure authorized by subdivisions (g) and (i).
(i) Any victim who receives information from the local health
officer pursuant to subdivision (g) may disclose the information as
he or she deems necessary to protect his or her health and safety or
the health and safety of his or her family or sexual partner.
(j) Any person who transmits test results or discloses information
pursuant to this section shall be immune from civil liability for
any action taken in compliance with this section.
1202.4. (a) (1) It is the intent of the Legislature that a victim
of crime who incurs any economic loss as a result of the commission
of a crime shall receive restitution directly from any defendant
convicted of that crime.
(2) Upon a person being convicted of any crime in the State of
California, the court shall order the defendant to pay a fine in the
form of a penalty assessment in accordance with Section 1464.
(3) The court, in addition to any other penalty provided or
imposed under the law, shall order the defendant to pay both of the
following:
(A) A restitution fine in accordance with subdivision (b).
(B) Restitution to the victim or victims, if any, in accordance
with subdivision (f), which shall be enforceable as if the order were
a civil judgment.
(b) In every case where a person is convicted of a crime, the
court shall impose a separate and additional restitution fine, unless
it finds compelling and extraordinary reasons for not doing so, and
states those reasons on the record.
(1) The restitution fine shall be set at the discretion of the
court and commensurate with the seriousness of the offense, but shall
not be less than two hundred dollars ($200), and not more than ten
thousand dollars ($10,000), if the person is convicted of a felony,
and shall not be less than one hundred dollars ($100), and not more
than one thousand dollars ($1,000), if the person is convicted of a
misdemeanor.
(2) In setting a felony restitution fine, the court may determine
the amount of the fine as the product of two hundred dollars ($200)
multiplied by the number of years of imprisonment the defendant is
ordered to serve, multiplied by the number of felony counts of which
the defendant is convicted.
(c) The court shall impose the restitution fine unless it finds
compelling and extraordinary reasons for not doing so, and states
those reasons on the record. A defendant's inability to pay shall not
be considered a compelling and extraordinary reason not to impose a
restitution fine. Inability to pay may be considered only in
increasing the amount of the restitution fine in excess of the two
hundred-dollar ($200) or one hundred-dollar ($100) minimum. The court
may specify that funds confiscated at the time of the defendant's
arrest, except for funds confiscated pursuant to Section 11469 of the
Health and Safety Code, be applied to the restitution fine if the
funds are not exempt for spousal or child support or subject to any
other legal exemption.
(d) In setting the amount of the fine pursuant to subdivision (b)
in excess of the two hundred-dollar ($200) or one hundred-dollar
($100) minimum, the court shall consider any relevant factors,
including, but not limited to, the defendant's inability to pay, the
seriousness and gravity of the offense and the circumstances of its
commission, any economic gain derived by the defendant as a result of
the crime, the extent to which any other person suffered any losses
as a result of the crime, and the number of victims involved in the
crime. Those losses may include pecuniary losses to the victim or his
or her dependents as well as intangible losses, such as
psychological harm caused by the crime. Consideration of a defendant'
s inability to pay may include his or her future earning capacity. A
defendant shall bear the burden of demonstrating his or her inability
to pay. Express findings by the court as to the factors bearing on
the amount of the fine shall not be required. A separate hearing for
the fine shall not be required.
(e) The restitution fine shall not be subject to penalty
assessments authorized in Section 1464 or Chapter 12 (commencing with
Section 76000) of Title 8 of the Government Code, or the state
surcharge authorized in Section 1465.7, and shall be deposited in the
Restitution Fund in the State Treasury.
(f) Except as provided in subdivisions (q) and (r), in every case
in which a victim has suffered economic loss as a result of the
defendant's conduct, the court shall require that the defendant make
restitution to the victim or victims in an amount established by
court order, based on the amount of loss claimed by the victim or
victims or any other showing to the court. If the amount of loss
cannot be ascertained at the time of sentencing, the restitution
order shall include a provision that the amount shall be determined
at the direction of the court. The court shall order full restitution
unless it finds compelling and extraordinary reasons for not doing
so, and states them on the record. The court may specify that funds
confiscated at the time of the defendant's arrest, except for funds
confiscated pursuant to Section 11469 of the Health and Safety Code,
be applied to the restitution order if the funds are not exempt for
spousal or child support or subject to any other legal exemption.
(1) The defendant has the right to a hearing before a judge to
dispute the determination of the amount of restitution. The court may
modify the amount, on its own motion or on the motion of the
district attorney, the victim or victims, or the defendant. If a
motion is made for modification of a restitution order, the victim
shall be notified of that motion at least 10 days prior to the
proceeding held to decide the motion.
(2) Determination of the amount of restitution ordered pursuant to
this subdivision shall not be affected by the indemnification or
subrogation rights of any third party. Restitution ordered pursuant
to this subdivision shall be ordered to be deposited to the
Restitution Fund to the extent that the victim, as defined in
subdivision (k), has received assistance from the Victim Compensation
Program pursuant to Chapter 5 (commencing with Section 13950) of
Part 4 of Division 3 of Title 2 of the Government Code.
(3) To the extent possible, the restitution order shall be
prepared by the sentencing court, shall identify each victim and each
loss to which it pertains, and shall be of a dollar amount that is
sufficient to fully reimburse the victim or victims for every
determined economic loss incurred as the result of the defendant's
criminal conduct, including, but not limited to, all of the
following:
(A) Full or partial payment for the value of stolen or damaged
property. The value of stolen or damaged property shall be the
replacement cost of like property, or the actual cost of repairing
the property when repair is possible.
(B) Medical expenses.
(C) Mental health counseling expenses.
(D) Wages or profits lost due to injury incurred by the victim,
and if the victim is a minor, wages or profits lost by the minor's
parent, parents, guardian, or guardians, while caring for the injured
minor. Lost wages shall include any commission income as well as any
base wages. Commission income shall be established by evidence of
commission income during the 12-month period prior to the date of the
crime for which restitution is being ordered, unless good cause for
a shorter time period is shown.
(E) Wages or profits lost by the victim, and if the victim is a
minor, wages or profits lost by the minor's parent, parents,
guardian, or guardians, due to time spent as a witness or in
assisting the police or prosecution. Lost wages shall include any
commission income as well as any base wages. Commission income shall
be established by evidence of commission income during the 12-month
period prior to the date of the crime for which restitution is being
ordered, unless good cause for a shorter time period is shown.
(F) Noneconomic losses, including, but not limited to,
psychological harm, for felony violations of Section 288.
(G) Interest, at the rate of 10 percent per annum, that accrues as
of the date of sentencing or loss, as determined by the court.
(H) Actual and reasonable attorney's fees and other costs of
collection accrued by a private entity on behalf of the victim.
(I) Expenses incurred by an adult victim in relocating away from
the defendant, including, but not limited to, deposits for utilities
and telephone service, deposits for rental housing, temporary lodging
and food expenses, clothing, and personal items. Expenses incurred
pursuant to this section shall be verified by law enforcement to be
necessary for the personal safety of the victim or by a mental health
treatment provider to be necessary for the emotional well-being of
the victim.
(J) Expenses to install or increase residential security incurred
related to a crime, as defined in subdivision (c) of Section 667.5,
including, but not limited to, a home security device or system, or
replacing or increasing the number of locks.
(K) Expenses to retrofit a residence or vehicle, or both, to make
the residence accessible to or the vehicle operational by the victim,
if the victim is permanently disabled, whether the disability is
partial or total, as a direct result of the crime.
(4) (A) If, as a result of the defendant's conduct, the
Restitution Fund has provided assistance to or on behalf of a victim
or derivative victim pursuant to Chapter 5 (commencing with Section
13950) of Part 4 of Division 3 of Title 2 of the Government Code, the
amount of assistance provided shall be presumed to be a direct
result of the defendant's criminal conduct and shall be included in
the amount of the restitution ordered.
(B) The amount of assistance provided by the Restitution Fund
shall be established by copies of bills submitted to the California
Victim Compensation and Government Claims Board reflecting the amount
paid by the board and whether the services for which payment was
made were for medical or dental expenses, funeral or burial expenses,
mental health counseling, wage or support losses, or rehabilitation.
Certified copies of these bills provided by the board and redacted
to protect the privacy and safety of the victim or any legal
privilege, together with a statement made under penalty of perjury by
the custodian of records that those bills were submitted to and were
paid by the board, shall be sufficient to meet this requirement.
(C) If the defendant offers evidence to rebut the presumption
established by this paragraph, the court may release additional
information contained in the records of the board to the defendant
only after reviewing that information in camera and finding that the
information is necessary for the defendant to dispute the amount of
the restitution order.
(5) Except as provided in paragraph (6), in any case in which an
order may be entered pursuant to this subdivision, the defendant
shall prepare and file a disclosure identifying all assets, income,
and liabilities in which the defendant held or controlled a present
or future interest as of the date of the defendant's arrest for the
crime for which restitution may be ordered. The financial disclosure
statements shall be made available to the victim and the board
pursuant to Section 1214. The disclosure shall be signed by the
defendant upon a form approved or adopted by the Judicial Council for
the purpose of facilitating the disclosure. Any defendant who
willfully states as true any material matter that he or she knows to
be false on the disclosure required by this subdivision is guilty of
a misdemeanor, unless this conduct is punishable as perjury or
another provision of law provides for a greater penalty.
(6) A defendant who fails to file the financial disclosure
required in paragraph (5), but who has filed a financial affidavit or
financial information pursuant to subdivision (c) of Section 987,
shall be deemed to have waived the confidentiality of that affidavit
or financial information as to a victim in whose favor the order of
restitution is entered pursuant to subdivision (f). The affidavit or
information shall serve in lieu of the financial disclosure required
in paragraph (5), and paragraphs (7) to (10), inclusive, shall not
apply.
(7) Except as provided in paragraph (6), the defendant shall file
the disclosure with the clerk of the court no later than the date set
for the defendant's sentencing, unless otherwise directed by the
court. The disclosure may be inspected or copied as provided by
subdivision (b), (c), or (d) of Section 1203.05.
(8) In its discretion, the court may relieve the defendant of the
duty under paragraph (7) of filing with the clerk by requiring that
the defendant's disclosure be submitted as an attachment to, and be
available to, those authorized to receive the following:
(A) Any report submitted pursuant to subparagraph (C) of paragraph
(2) of subdivision (b) of Section 1203 or subdivision (g) of Section
1203.
(B) Any stipulation submitted pursuant to paragraph (4) of
subdivision (b) of Section 1203.
(C) Any report by the probation officer, or any information
submitted by the defendant applying for a conditional sentence
pursuant to subdivision (d) of Section 1203.
(9) The court may consider a defendant's unreasonable failure to
make a complete disclosure pursuant to paragraph (5) as any of the
following:
(A) A circumstance in aggravation of the crime in imposing a term
under subdivision (b) of Section 1170.
(B) A factor indicating that the interests of justice would not be
served by admitting the defendant to probation under Section 1203.
(C) A factor indicating that the interests of justice would not be
served by conditionally sentencing the defendant under Section 1203.
(D) A factor indicating that the interests of justice would not be
served by imposing less than the maximum fine and sentence fixed by
law for the case.
(10) A defendant's failure or refusal to make the required
disclosure pursuant to paragraph (5) shall not delay entry of an
order of restitution or pronouncement of sentence. In appropriate
cases, the court may do any of the following:
(A) Require the defendant to be examined by the district attorney
pursuant to subdivision (h).
(B) If sentencing the defendant under Section 1170, provide that
the victim shall receive a copy of the portion of the probation
report filed pursuant to Section 1203.10 concerning the defendant's
employment, occupation, finances, and liabilities.
(C) If sentencing the defendant under Section 1203, set a date and
place for submission of the disclosure required by paragraph (5) as
a condition of probation or suspended sentence.
(11) If a defendant has any remaining unpaid balance on a
restitution order or fine 120 days prior to his or her scheduled
release from probation or 120 days prior to his or her completion of
a conditional sentence, the defendant shall prepare and file a new
and updated financial disclosure identifying all assets, income, and
liabilities in which the defendant holds or controls or has held or
controlled a present or future interest during the defendant's period
of probation or conditional sentence. The financial disclosure shall
be made available to the victim and the board pursuant to Section
1214. The disclosure sha
