654. (a) An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision
that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars
a prosecution for the same act or omission under any other.
(b) Notwithstanding subdivision (a), a defendant sentenced
pursuant to subdivision (a) shall not be granted probation if any of
the provisions that would otherwise apply to the defendant prohibits
the granting of probation.
654.1. It shall be unlawful for any person, acting individually or
as an officer or employee of a corporation, or as a member of a
copartnership or as a commission agent or employee of another person,
firm or corporation, to sell or offer for sale or, to negotiate,
provide or arrange for, or to advertise or hold himself out as one
who sells or offers for sale or negotiates, provides or arranges for
transportation of a person or persons on an individual fare basis
over the public highways of the State of California unless such
transportation is to be furnished or provided solely by, and such
sale is authorized by, a carrier having a valid and existing
certificate of convenience and necessity, or other valid and existing
permit from the Public Utilities Commission of the State of
California, or from the Interstate Commerce Commission of the United
States, authorizing the holder of such certificate or permit to
provide such transportation.
654.2. The provisions of Section 654.1 of the Penal Code shall not
apply to the selling, furnishing, or providing of transportation of
any person or persons in any of the following circumstances:
(a) When no compensation is paid or to be paid, either directly or
indirectly, for the transportation.
(b) For the furnishing or providing of transportation to or from
work of employees engaged in farmwork on any farm of the State of
California.
(c) For the furnishing or providing of transportation to and from
work of employees of any nonprofit cooperative association, organized
pursuant to any law of the State of California.
(d) For the transportation of persons wholly or substantially
within the limits of a single municipality or of contiguous
municipalities.
(e) For transportation of persons over a route wholly or partly
within a national park or state park where the transportation is sold
in conjunction with, or as part of, a rail trip or trip over a
regularly operated motorbus transportation system or line.
(f) For the transportation of persons between home and work
locations or of persons having a common work-related trip purpose in
a vehicle having a seating capacity of 15 passengers or less,
including the driver, which is used for the purpose of ridesharing,
as defined in Section 522 of the Vehicle Code, when the ridesharing
is incidental to another purpose of the driver. This exemption does
not apply if the primary purpose for the transportation of those
persons is to make a profit. "Profit," as used in this subdivision,
does not include the recovery of the actual costs incurred in owning
and operating a vanpool vehicle, as defined in Section 668 of the
Vehicle Code.
654.3. Violation of Section 654.1 shall be a misdemeanor, and upon
first conviction the punishment shall be a fine of not over five
hundred dollars ($500), or imprisonment in jail for not over 90 days,
or both such fine and imprisonment. Upon second conviction the
punishment shall be imprisonment in jail for not less than 30 days
and not more than 180 days. Upon a third or subsequent conviction the
punishment shall be confinement in jail for not less than 90 days
and not more than one year, and a person suffering three or more
convictions shall not be eligible to probation, the provisions of any
law to the contrary notwithstanding.
655. An act or omission declared punishable by this Code is not
less so because it is also punishable under the laws of another
State, Government, or country, unless the contrary is expressly
declared.
656. Whenever on the trial of an accused person it appears that
upon a criminal prosecution under the laws of the United States, or
of another state or territory of the United States based upon the act
or omission in respect to which he or she is on trial, he or she has
been acquitted or convicted, it is a sufficient defense.
656.5. Any person convicted of a crime based upon an act or
omission for which he or she has been acquitted or convicted in
another country shall be entitled to credit for any actual time
served in custody in a penal institution in that country for the
crime, and for any additional time credits that would have actually
been awarded had the person been incarcerated in California.
656.6. No international treaties or laws shall be violated to
secure the return of a person who has been convicted in another
country of a crime committed in California in order to prosecute the
person in California.
657. A criminal act is not the less punishable as a crime because
it is also declared to be punishable as a contempt.
658. When it appears, at the time of passing sentence upon a person
convicted upon indictment, that such person has already paid a fine
or suffered an imprisonment for the act of which he stands convicted,
under an order adjudging it a contempt, the Court authorized to pass
sentence may mitigate the punishment to be imposed, in its
discretion.
659. Whenever an act is declared a misdemeanor, and no punishment
for counseling or aiding in the commission of such act is expressly
prescribed by law, every person who counsels or aids another in the
commission of such act is guilty of a misdemeanor.
660. In the various cases in which the sending of a letter is made
criminal by this Code, the offense is deemed complete from the time
when such letter is deposited in any Post Office or any other place,
or delivered to any person, with intent that it shall be forwarded.
661. In addition to the penalty affixed by express terms, to every
neglect or violation of official duty on the part of public officers,
State, county, city, or township, where it is not so expressly
provided, they may, in the discretion of the Court, be removed from
office.
662. No person is punishable for an omission to perform an act,
where such act has been performed by another person acting in his
behalf and competent by law to perform it.
663. Any person may be convicted of an attempt to commit a crime,
although it appears on the trial that the crime intended or attempted
was perpetrated by such person in pursuance of such attempt, unless
the Court, in its discretion, discharges the jury and directs such
person to be tried for such crime.
664. Every person who attempts to commit any crime, but fails, or
is prevented or intercepted in its perpetration, shall be punished
where no provision is made by law for the punishment of those
attempts, as follows:
(a) If the crime attempted is punishable by imprisonment in the
state prison, the person guilty of the attempt shall be punished by
imprisonment in the state prison for one-half the term of
imprisonment prescribed upon a conviction of the offense attempted.
However, if the crime attempted is willful, deliberate, and
premeditated murder, as defined in Section 189, the person guilty of
that attempt shall be punished by imprisonment in the state prison
for life with the possibility of parole. If the crime attempted is
any other one in which the maximum sentence is life imprisonment or
death, the person guilty of the attempt shall be punished by
imprisonment in the state prison for five, seven, or nine years. The
additional term provided in this section for attempted willful,
deliberate, and premeditated murder shall not be imposed unless the
fact that the attempted murder was willful, deliberate, and
premeditated is charged in the accusatory pleading and admitted or
found to be true by the trier of fact.
(b) If the crime attempted is punishable by imprisonment in a
county jail, the person guilty of the attempt shall be punished by
imprisonment in a county jail for a term not exceeding one-half the
term of imprisonment prescribed upon a conviction of the offense
attempted.
(c) If the offense so attempted is punishable by a fine, the
offender convicted of that attempt shall be punished by a fine not
exceeding one-half the largest fine which may be imposed upon a
conviction of the offense attempted.
(d) If a crime is divided into degrees, an attempt to commit the
crime may be of any of those degrees, and the punishment for the
attempt shall be determined as provided by this section.
(e) Notwithstanding subdivision (a), if attempted murder is
committed upon a peace officer or firefighter, as those terms are
defined in paragraphs (7) and (9) of subdivision (a) of Section
190.2, a custodial officer, as that term is defined in subdivision
(a) of Section 831 or subdivision (a) of Section 831.5, a custody
assistant, as that term is defined in subdivision (a) of Section
831.7, or a nonsworn uniformed employee of a sheriff's department
whose job entails the care or control of inmates in a detention
facility, as defined in subdivision (c) of Section 289.6, and the
person who commits the offense knows or reasonably should know that
the victim is a peace officer, firefighter, custodial officer,
custody assistant, or nonsworn uniformed employee of a sheriff's
department engaged in the performance of his or her duties, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for life with the possibility of parole.
This subdivision shall apply if it is proven that a direct but
ineffectual act was committed by one person toward killing another
human being and the person committing the act harbored express malice
aforethought, namely, a specific intent to unlawfully kill another
human being. The Legislature finds and declares that this paragraph
is declaratory of existing law.
(f) Notwithstanding subdivision (a), if the elements of
subdivision (e) are proven in an attempted murder and it is also
charged and admitted or found to be true by the trier of fact that
the attempted murder was willful, deliberate, and premeditated, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for 15 years to life. Article 2.5 (commencing with
Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to
reduce this minimum term of 15 years in state prison, and the person
shall not be released prior to serving 15 years' confinement.
665. Sections 663 and 664 do not protect a person who, in
attempting unsuccessfully to commit a crime, accomplishes the
commission of another and different crime, whether greater or less in
guilt, from suffering the punishment prescribed by law for the crime
committed.
666. (a) Notwithstanding Section 490, every person who, having been
convicted three or more times of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496 and having served a
term therefor in any penal institution or having been imprisoned
therein as a condition of probation for that offense, is subsequently
convicted of petty theft, then the person convicted of that
subsequent offense is punishable by imprisonment in the county jail
not exceeding one year, or in the state prison.
(b) Notwithstanding Section 490, any person described in paragraph
(1) who, having been convicted of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496, and having served a
term of imprisonment therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense, who
is subsequently convicted of petty theft, is punishable by
imprisonment in the county jail not exceeding one year, or in the
state prison.
(1) This subdivision shall apply to any person who is required to
register pursuant to the Sex Offender Registration Act, or who has a
prior violent or serious felony conviction, as specified in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
(2) This subdivision shall not be construed to preclude
prosecution or punishment pursuant to subdivisions (b) to (i),
inclusive, of Section 667, or Section 1170.12.
666.5. (a) Every person who, having been previously convicted of a
felony violation of Section 10851 of the Vehicle Code, or felony
grand theft involving an automobile in violation of subdivision (d)
of Section 487 or former subdivision (3) of Section 487, as that
section read prior to being amended by Section 4 of Chapter 1125 of
the Statutes of 1993, or felony grand theft involving a motor
vehicle, as defined in Section 415 of the Vehicle Code, any trailer,
as defined in Section 630 of the Vehicle Code, any special
construction equipment, as defined in Section 565 of the Vehicle
Code, or any vessel, as defined in Section 21 of the Harbors and
Navigation Code in violation of former Section 487h, or a felony
violation of Section 496d regardless of whether or not the person
actually served a prior prison term for those offenses, is
subsequently convicted of any of these offenses shall be punished by
imprisonment in the state prison for two, three, or four years, or a
fine of ten thousand dollars ($10,000), or both the fine and the
imprisonment.
(b) For the purposes of this section, the terms "special
construction equipment" and "vessel" are limited to motorized
vehicles and vessels.
(c) The existence of any fact which would bring a person under
subdivision (a) shall be alleged in the information or indictment and
either admitted by the defendant in open court, or found to be true
by the jury trying the issue of guilt or by the court where guilt is
established by plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
667. (a) (1) In compliance with subdivision (b) of Section 1385,
any person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense
committed in another jurisdiction which includes all of the elements
of any serious felony, shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement
for each such prior conviction on charges brought and tried
separately. The terms of the present offense and each enhancement
shall run consecutively.
(2) This subdivision shall not be applied when the punishment
imposed under other provisions of law would result in a longer term
of imprisonment. There is no requirement of prior incarceration or
commitment for this subdivision to apply.
(3) The Legislature may increase the length of the enhancement of
sentence provided in this subdivision by a statute passed by majority
vote of each house thereof.
(4) As used in this subdivision, "serious felony" means a serious
felony listed in subdivision (c) of Section 1192.7.
(5) This subdivision shall not apply to a person convicted of
selling, furnishing, administering, or giving, or offering to sell,
furnish, administer, or give to a minor any methamphetamine-related
drug or any precursors of methamphetamine unless the prior conviction
was for a serious felony described in subparagraph (24) of
subdivision (c) of Section 1192.7.
(b) It is the intent of the Legislature in enacting subdivisions
(b) to (i), inclusive, to ensure longer prison sentences and greater
punishment for those who commit a felony and have been previously
convicted of serious and/or violent felony offenses.
(c) Notwithstanding any other law, if a defendant has been
convicted of a felony and it has been pled and proved that the
defendant has one or more prior felony convictions as defined in
subdivision (d), the court shall adhere to each of the following:
(1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent felony conviction.
(2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
(3) The length of time between the prior felony conviction and the
current felony conviction shall not affect the imposition of
sentence.
(4) There shall not be a commitment to any other facility other
than the state prison. Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
(5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
(6) If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to subdivision (e).
(7) If there is a current conviction for more than one serious or
violent felony as described in paragraph (6), the court shall impose
the sentence for each conviction consecutive to the sentence for any
other conviction for which the defendant may be consecutively
sentenced in the manner prescribed by law.
(8) Any sentence imposed pursuant to subdivision (e) will be
imposed consecutive to any other sentence which the defendant is
already serving, unless otherwise provided by law.
(d) Notwithstanding any other law and for the purposes of
subdivisions (b) to (i), inclusive, a prior conviction of a felony
shall be defined as:
(1) Any offense defined in subdivision (c) of Section 667.5 as a
violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state. The determination of
whether a prior conviction is a prior felony conviction for purposes
of subdivisions (b) to (i), inclusive, shall be made upon the date of
that prior conviction and is not affected by the sentence imposed
unless the sentence automatically, upon the initial sentencing,
converts the felony to a misdemeanor. None of the following
dispositions shall affect the determination that a prior conviction
is a prior felony for purposes of subdivisions (b) to (i), inclusive:
(A) The suspension of imposition of judgment or sentence.
(B) The stay of execution of sentence.
(C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.
(D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
(2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state
prison. A prior conviction of a particular felony shall include a
conviction in another jurisdiction for an offense that includes all
of the elements of the particular felony as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior felony
conviction for purposes of sentence enhancement if:
(A) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(B) The prior offense is listed in subdivision (b) of Section 707
of the Welfare and Institutions Code or described in paragraph (1) or
(2) as a felony.
(C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law.
(D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
(e) For purposes of subdivisions (b) to (i), inclusive, and in
addition to any other enhancement or punishment provisions which may
apply, the following shall apply where a defendant has a prior felony
conviction:
(1) If a defendant has one prior felony conviction that has been
pled and proved, the determinate term or minimum term for an
indeterminate term shall be twice the term otherwise provided as
punishment for the current felony conviction.
(2) (A) If a defendant has two or more prior felony convictions as
defined in subdivision (d) that have been pled and proved, the term
for the current felony conviction shall be an indeterminate term of
life imprisonment with a minimum term of the indeterminate sentence
calculated as the greater of:
(i) Three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions.
(ii) Imprisonment in the state prison for 25 years.
(iii) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) shall be
served consecutive to any other term of imprisonment for which a
consecutive term may be imposed by law. Any other term imposed
subsequent to any indeterminate term described in subparagraph (A)
shall not be merged therein but shall commence at the time the person
would otherwise have been released from prison.
(f) (1) Notwithstanding any other law, subdivisions (b) to (i),
inclusive, shall be applied in every case in which a defendant has a
prior felony conviction as defined in subdivision (d). The
prosecuting attorney shall plead and prove each prior felony
conviction except as provided in paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior
felony conviction allegation in the furtherance of justice pursuant
to Section 1385, or if there is insufficient evidence to prove the
prior conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior felony conviction, the
court may dismiss or strike the allegation.
(g) Prior felony convictions shall not be used in plea bargaining
as defined in subdivision (b) of Section 1192.7. The prosecution
shall plead and prove all known prior felony convictions and shall
not enter into any agreement to strike or seek the dismissal of any
prior felony conviction allegation except as provided in paragraph
(2) of subdivision (f).
(h) All references to existing statutes in subdivisions (c) to
(g), inclusive, are to statutes as they existed on June 30, 1993.
(i) If any provision of subdivisions (b) to (h), inclusive, or the
application thereof to any person or circumstance is held invalid,
that invalidity shall not affect other provisions or applications of
those subdivisions which can be given effect without the invalid
provision or application, and to this end the provisions of those
subdivisions are severable.
(j) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
667.1. Notwithstanding subdivision (h) of Section 667, for all
offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g),
inclusive, of Section 667, are to those statutes as they existed on
the effective date of this act, including amendments made to those
statutes by the act enacted during the 2005-06 Regular Session that
amended this section.
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 18745, 18750, or 18755.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
667.51. (a) Any person who is convicted of violating Section 288 or
288.5 shall receive a five-year enhancement for a prior conviction
of an offense specified in subdivision (b).
(b) Section 261, 262, 264.1, 269, 285, 286, 288, 288a, 288.5, or
289, or any offense committed in another jurisdiction that includes
all of the elements of any of the offenses specified in this
subdivision.
(c) A violation of Section 288 or 288.5 by a person who has been
previously convicted two or more times of an offense specified in
subdivision (b) shall be punished by imprisonment in the state prison
for 15 years to life.
667.6. (a) Any person who is convicted of an offense specified in
subdivision (e) and who has been convicted previously of any of those
offenses shall receive a five-year enhancement for each of those
prior convictions.
(b) Any person who is convicted of an offense specified in
subdivision (e) and who has served two or more prior prison terms as
defined in Section 667.5 for any of those offenses shall receive a
10-year enhancement for each of those prior terms.
(c) In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
an offense specified in subdivision (e) if the crimes involve the
same victim on the same occasion. A term may be imposed consecutively
pursuant to this subdivision if a person is convicted of at least
one offense specified in subdivision (e). If the term is imposed
consecutively pursuant to this subdivision, it shall be served
consecutively to any other term of imprisonment, and shall commence
from the time the person otherwise would have been released from
imprisonment. The term shall not be included in any determination
pursuant to Section 1170.1. Any other term imposed subsequent to that
term shall not be merged therein but shall commence at the time the
person otherwise would have been released from prison.
(d) A full, separate, and consecutive term shall be imposed for
each violation of an offense specified in subdivision (e) if the
crimes involve separate victims or involve the same victim on
separate occasions.
In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court
shall consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect upon
his or her actions and nevertheless resumed sexually assaultive
behavior. Neither the duration of time between crimes, nor whether or
not the defendant lost or abandoned his or her opportunity to
attack, shall be, in and of itself, determinative on the issue of
whether the crimes in question occurred on separate occasions.
The term shall be served consecutively to any other term of
imprisonment and shall commence from the time the person otherwise
would have been released from imprisonment. The term shall not be
included in any determination pursuant to Section 1170.1. Any other
term imposed subsequent to that term shall not be merged therein but
shall commence at the time the person otherwise would have been
released from prison.
(e) This section shall apply to the following offenses:
(1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1), (4), or (5) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d) or (k), of Section 286.
(5) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) or (k), of Section 288a.
(8) Sexual penetration, in violation of subdivision (a) or (g) of
Section 289.
(9) As a present offense under subdivision (c) or (d), assault
with intent to commit a specified sexual offense, in violation of
Section 220.
(10) As a prior conviction under subdivision (a) or (b), an
offense committed in another jurisdiction that includes all of the
elements of an offense specified in this subdivision.
(f) In addition to any enhancement imposed pursuant to subdivision
(a) or (b), the court may also impose a fine not to exceed twenty
thousand dollars ($20,000) for anyone sentenced under those
provisions. The fine imposed and collected pursuant to this
subdivision shall be deposited in the Victim-Witness Assistance Fund
to be available for appropriation to fund child sexual exploitation
and child sexual abuse victim counseling centers and prevention
programs established pursuant to Section 13837. If the court orders a
fine to be imposed pursuant to this subdivision, the actual
administrative cost of collecting that fine, not to exceed 2 percent
of the total amount paid, may be paid into the general fund of the
county treasury for the use and benefit of the county.
667.61. (a) Except as provided in subdivision (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e) shall be punished by imprisonment in the state prison for 25
years to life.
(b) Except as provided in subdivision (a), (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e) shall be
punished by imprisonment in the state prison for 15 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288.
(9) Continuous sexual abuse of a child, in violation of Section
288.5.
(d) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent
in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the present offense in
violation of Section 205 or 206.
(4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
(5) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (2), (3), or (4) of this
subdivision.
(6) The defendant personally inflicted great bodily injury on the
victim or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8.
(7) The defendant personally inflicted bodily harm on the victim
who was under 14 years of age.
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation of
Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission of a
burglary in violation of Section 459.
(3) The defendant personally used a dangerous or deadly weapon or
a firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
(4) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
(5) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
(6) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
(7) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (1), (2), (3), (5), or (6)
of this subdivision.
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided
in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
proved, that circumstance or those circumstances shall be used as
the basis for imposing the term provided in subdivision (a), (b),
(j), (l), or (m) whichever is greater, rather than being used to
impose the punishment authorized under any other provision of law,
unless another provision of law provides for a greater penalty or the
punishment under another provision of law can be imposed in addition
to the punishment provided by this section. However, if any
additional circumstance or circumstances specified in subdivision (d)
or (e) have been pled and proved, the minimum number of
circumstances shall be used as the basis for imposing the term
provided in subdivision (a), (j), or (l) and any other additional
circumstance or circumstances shall be used to impose any punishment
or enhancement authorized under any other provision of law.
(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.
(h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n), the court shall impose a consecutive sentence for
each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.
(j) (1) Any person who is convicted of an offense specified in
subdivision (c), with the exception of a violation of subdivision (a)
of Section 288, upon a victim who is a child under 14 years of age
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e), shall be punished by imprisonment in the state prison for life
without the possibility of parole. Where the person was under 18
years of age at the time of the offense, the person shall be punished
by imprisonment in the state prison for 25 years to life.
(2) Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of age,
shall be punished by imprisonment in the state prison for 25 years to
life.
(k) As used in this section, "bodily harm" means any substantial
physical injury resulting from the use of force that is more than the
force necessary to commit an offense specified in subdivision (c).
(l) Any person who is convicted of an offense specified in
subdivision (n) under one or more of the circumstances specified in
subdivision (d) or under two or more of the circumstances specified
in subdivision (e), upon a victim who is a minor 14 years of age or
older shall be punished by imprisonment in the state prison for life
without the possibility of parole. If the person who was convicted
was under 18 years of age at the time of the offense, he or she shall
be punished by imprisonment in the state prison for 25 years to
life.
(m) Any person who is convicted of an offense specified in
subdivision (n) under one of the circumstances specified in
subdivision (e) against a minor 14 years of age or older shall be
punished by imprisonment in the state prison for 25 years to life.
(n) Subdivisions (l) and (m) shall apply to any of the following
offenses:
(1) Rape, in violation of paragraph (2) of subdivision (a) of
Section 261.
(2) Spousal rape, in violation of paragraph (1) of subdivision (a)
of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sexual penetration, in violation of paragraph (1) of
subdivision (a) of Section 289.
(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
Section 286, or in violation of subdivision (d) of Section 286.
(6) Oral copulation, in violation of paragraph (2) of subdivision
(c) of Section 288a, or in violation of subdivision (d) of Section
288a.
(o) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section, and is
either admitted by the defendant in open court or found to be true by
the trier of fact.
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; carjacking involving the use of a deadly weapon;
assault with intent to commit murder; assault with a deadly weapon;
assault with a force likely to produce great bodily injury; assault
with intent to commit rape, sodomy, oral copulation, sexual
penetration in violation of Section 289, or lewd and lascivious acts
on a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive device with
intent to murder in violation of Section 12308; exploding a
destructive device which causes bodily injury in violation of Section
12309, or mayhem or great bodily injury in violation of Section
12310; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 12303.3; any felony
in which the person inflicted great bodily injury as provided in
Section 12022.53 or 12022.7; or any felony punishable by death or
life imprisonment with or without the possibility of parole is a
habitual offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; carjacking involving the use of a deadly weapon;
assault with intent to commit murder; assault with a deadly weapon;
assault with a force likely to produce great bodily injury; assault
with intent to commit rape, sodomy, oral copulation, sexual
penetration in violation of Section 289, or lewd and lascivious acts
on a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive device with
intent to murder in violation of Section 18745; exploding a
destructive device which causes bodily injury in violation of Section
18750, or mayhem or great bodily injury in violation of Section
18755; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 18740; any felony in
which the person inflicted great bodily injury as provided in Section
12022.53 or 12022.7; or any felony punishable by death or life
imprisonment with or without the possibility of parole is a habitual
offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.70. Any person who is convicted of murder, which was committed
prior to June 3, 1998, and sentenced pursuant to paragraph (1) of
subdivision (a) of Section 667.7, shall be eligible only for credit
pursuant to subdivisions (a), (b), and (c) of Section 2931.
667.71. (a) For the purpose of this section, a habitual sexual
offender is a person who has been previously convicted of one or more
of the offenses specified in subdivision (c) and who is convicted in
the present proceeding of one of those offenses.
(b) A habitual sexual offender shall be punished by imprisonment
in the state prison for 25 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (a) or (b)
of Section 288.
(5) Sexual penetration, in violation of subdivision (a) or (j) of
Section 289.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Sodomy, in violation of subdivision (c) or (d) of Section 286.
(8) Oral copulation, in violation of subdivision (c) or (d) of
Section 288a.
(9) Kidnapping, in violation of subdivision (b) of Section 207.
(10) Kidnapping, in violation of former subdivision (d) of Section
208 (kidnapping to commit specified sex offenses).
(11) Kidnapping, in violation of subdivision (b) of Section 209
with the intent to commit a specified sexual offense.
(12) Aggravated sexual assault of a child, in violation of Section
269.
(13) An offense committed in another jurisdiction that includes
all of the elements of an offense specified in this subdivision.
(d) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any prior conviction specified in subdivision (c) for any person who
is subject to punishment under this section.
(e) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(f) This section shall apply only if the defendant's status as a
habitual sexual offender is alleged in the accusatory pleading, and
either admitted by the defendant in open court, or found to be true
by the trier of fact.
667.75. Any person convicted of a violation of Section 11353,
11353.5, 11361, 11380, or 11380.5 of the Health and Safety Code who
has previously served two or more prior separate prison terms, as
defined in Section 667.5, for a violation of Section 11353, 11353.5,
11361, 11380, or 11380.5 of the Health and Safety Code, may be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 17 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, whichever is
greatest. The provisions of Article 2.5 (commencing with Section
2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any
minimum term in a state prison imposed pursuant to this section, but
the person shall not otherwise be released on parole prior to that
time. No prior prison term shall be used for this determination which
was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.8. (a) Except as provided in subdivision (b), any person
convicted of a felony violation of Section 261, 262, 264.1, 286,
288a, or 289 who, for the purpose of committing that sexual offense,
kidnapped the victim in violation of Section 207 or 209, shall be
punished by an additional term of nine years.
(b) Any person convicted of a felony violation of subdivision (c)
of Section 286, Section 288, or subdivision (c) of Section 288a who,
for t
654. (a) An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision
that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars
a prosecution for the same act or omission under any other.
(b) Notwithstanding subdivision (a), a defendant sentenced
pursuant to subdivision (a) shall not be granted probation if any of
the provisions that would otherwise apply to the defendant prohibits
the granting of probation.
654.1. It shall be unlawful for any person, acting individually or
as an officer or employee of a corporation, or as a member of a
copartnership or as a commission agent or employee of another person,
firm or corporation, to sell or offer for sale or, to negotiate,
provide or arrange for, or to advertise or hold himself out as one
who sells or offers for sale or negotiates, provides or arranges for
transportation of a person or persons on an individual fare basis
over the public highways of the State of California unless such
transportation is to be furnished or provided solely by, and such
sale is authorized by, a carrier having a valid and existing
certificate of convenience and necessity, or other valid and existing
permit from the Public Utilities Commission of the State of
California, or from the Interstate Commerce Commission of the United
States, authorizing the holder of such certificate or permit to
provide such transportation.
654.2. The provisions of Section 654.1 of the Penal Code shall not
apply to the selling, furnishing, or providing of transportation of
any person or persons in any of the following circumstances:
(a) When no compensation is paid or to be paid, either directly or
indirectly, for the transportation.
(b) For the furnishing or providing of transportation to or from
work of employees engaged in farmwork on any farm of the State of
California.
(c) For the furnishing or providing of transportation to and from
work of employees of any nonprofit cooperative association, organized
pursuant to any law of the State of California.
(d) For the transportation of persons wholly or substantially
within the limits of a single municipality or of contiguous
municipalities.
(e) For transportation of persons over a route wholly or partly
within a national park or state park where the transportation is sold
in conjunction with, or as part of, a rail trip or trip over a
regularly operated motorbus transportation system or line.
(f) For the transportation of persons between home and work
locations or of persons having a common work-related trip purpose in
a vehicle having a seating capacity of 15 passengers or less,
including the driver, which is used for the purpose of ridesharing,
as defined in Section 522 of the Vehicle Code, when the ridesharing
is incidental to another purpose of the driver. This exemption does
not apply if the primary purpose for the transportation of those
persons is to make a profit. "Profit," as used in this subdivision,
does not include the recovery of the actual costs incurred in owning
and operating a vanpool vehicle, as defined in Section 668 of the
Vehicle Code.
654.3. Violation of Section 654.1 shall be a misdemeanor, and upon
first conviction the punishment shall be a fine of not over five
hundred dollars ($500), or imprisonment in jail for not over 90 days,
or both such fine and imprisonment. Upon second conviction the
punishment shall be imprisonment in jail for not less than 30 days
and not more than 180 days. Upon a third or subsequent conviction the
punishment shall be confinement in jail for not less than 90 days
and not more than one year, and a person suffering three or more
convictions shall not be eligible to probation, the provisions of any
law to the contrary notwithstanding.
655. An act or omission declared punishable by this Code is not
less so because it is also punishable under the laws of another
State, Government, or country, unless the contrary is expressly
declared.
656. Whenever on the trial of an accused person it appears that
upon a criminal prosecution under the laws of the United States, or
of another state or territory of the United States based upon the act
or omission in respect to which he or she is on trial, he or she has
been acquitted or convicted, it is a sufficient defense.
656.5. Any person convicted of a crime based upon an act or
omission for which he or she has been acquitted or convicted in
another country shall be entitled to credit for any actual time
served in custody in a penal institution in that country for the
crime, and for any additional time credits that would have actually
been awarded had the person been incarcerated in California.
656.6. No international treaties or laws shall be violated to
secure the return of a person who has been convicted in another
country of a crime committed in California in order to prosecute the
person in California.
657. A criminal act is not the less punishable as a crime because
it is also declared to be punishable as a contempt.
658. When it appears, at the time of passing sentence upon a person
convicted upon indictment, that such person has already paid a fine
or suffered an imprisonment for the act of which he stands convicted,
under an order adjudging it a contempt, the Court authorized to pass
sentence may mitigate the punishment to be imposed, in its
discretion.
659. Whenever an act is declared a misdemeanor, and no punishment
for counseling or aiding in the commission of such act is expressly
prescribed by law, every person who counsels or aids another in the
commission of such act is guilty of a misdemeanor.
660. In the various cases in which the sending of a letter is made
criminal by this Code, the offense is deemed complete from the time
when such letter is deposited in any Post Office or any other place,
or delivered to any person, with intent that it shall be forwarded.
661. In addition to the penalty affixed by express terms, to every
neglect or violation of official duty on the part of public officers,
State, county, city, or township, where it is not so expressly
provided, they may, in the discretion of the Court, be removed from
office.
662. No person is punishable for an omission to perform an act,
where such act has been performed by another person acting in his
behalf and competent by law to perform it.
663. Any person may be convicted of an attempt to commit a crime,
although it appears on the trial that the crime intended or attempted
was perpetrated by such person in pursuance of such attempt, unless
the Court, in its discretion, discharges the jury and directs such
person to be tried for such crime.
664. Every person who attempts to commit any crime, but fails, or
is prevented or intercepted in its perpetration, shall be punished
where no provision is made by law for the punishment of those
attempts, as follows:
(a) If the crime attempted is punishable by imprisonment in the
state prison, the person guilty of the attempt shall be punished by
imprisonment in the state prison for one-half the term of
imprisonment prescribed upon a conviction of the offense attempted.
However, if the crime attempted is willful, deliberate, and
premeditated murder, as defined in Section 189, the person guilty of
that attempt shall be punished by imprisonment in the state prison
for life with the possibility of parole. If the crime attempted is
any other one in which the maximum sentence is life imprisonment or
death, the person guilty of the attempt shall be punished by
imprisonment in the state prison for five, seven, or nine years. The
additional term provided in this section for attempted willful,
deliberate, and premeditated murder shall not be imposed unless the
fact that the attempted murder was willful, deliberate, and
premeditated is charged in the accusatory pleading and admitted or
found to be true by the trier of fact.
(b) If the crime attempted is punishable by imprisonment in a
county jail, the person guilty of the attempt shall be punished by
imprisonment in a county jail for a term not exceeding one-half the
term of imprisonment prescribed upon a conviction of the offense
attempted.
(c) If the offense so attempted is punishable by a fine, the
offender convicted of that attempt shall be punished by a fine not
exceeding one-half the largest fine which may be imposed upon a
conviction of the offense attempted.
(d) If a crime is divided into degrees, an attempt to commit the
crime may be of any of those degrees, and the punishment for the
attempt shall be determined as provided by this section.
(e) Notwithstanding subdivision (a), if attempted murder is
committed upon a peace officer or firefighter, as those terms are
defined in paragraphs (7) and (9) of subdivision (a) of Section
190.2, a custodial officer, as that term is defined in subdivision
(a) of Section 831 or subdivision (a) of Section 831.5, a custody
assistant, as that term is defined in subdivision (a) of Section
831.7, or a nonsworn uniformed employee of a sheriff's department
whose job entails the care or control of inmates in a detention
facility, as defined in subdivision (c) of Section 289.6, and the
person who commits the offense knows or reasonably should know that
the victim is a peace officer, firefighter, custodial officer,
custody assistant, or nonsworn uniformed employee of a sheriff's
department engaged in the performance of his or her duties, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for life with the possibility of parole.
This subdivision shall apply if it is proven that a direct but
ineffectual act was committed by one person toward killing another
human being and the person committing the act harbored express malice
aforethought, namely, a specific intent to unlawfully kill another
human being. The Legislature finds and declares that this paragraph
is declaratory of existing law.
(f) Notwithstanding subdivision (a), if the elements of
subdivision (e) are proven in an attempted murder and it is also
charged and admitted or found to be true by the trier of fact that
the attempted murder was willful, deliberate, and premeditated, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for 15 years to life. Article 2.5 (commencing with
Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to
reduce this minimum term of 15 years in state prison, and the person
shall not be released prior to serving 15 years' confinement.
665. Sections 663 and 664 do not protect a person who, in
attempting unsuccessfully to commit a crime, accomplishes the
commission of another and different crime, whether greater or less in
guilt, from suffering the punishment prescribed by law for the crime
committed.
666. (a) Notwithstanding Section 490, every person who, having been
convicted three or more times of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496 and having served a
term therefor in any penal institution or having been imprisoned
therein as a condition of probation for that offense, is subsequently
convicted of petty theft, then the person convicted of that
subsequent offense is punishable by imprisonment in the county jail
not exceeding one year, or in the state prison.
(b) Notwithstanding Section 490, any person described in paragraph
(1) who, having been convicted of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496, and having served a
term of imprisonment therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense, who
is subsequently convicted of petty theft, is punishable by
imprisonment in the county jail not exceeding one year, or in the
state prison.
(1) This subdivision shall apply to any person who is required to
register pursuant to the Sex Offender Registration Act, or who has a
prior violent or serious felony conviction, as specified in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
(2) This subdivision shall not be construed to preclude
prosecution or punishment pursuant to subdivisions (b) to (i),
inclusive, of Section 667, or Section 1170.12.
666.5. (a) Every person who, having been previously convicted of a
felony violation of Section 10851 of the Vehicle Code, or felony
grand theft involving an automobile in violation of subdivision (d)
of Section 487 or former subdivision (3) of Section 487, as that
section read prior to being amended by Section 4 of Chapter 1125 of
the Statutes of 1993, or felony grand theft involving a motor
vehicle, as defined in Section 415 of the Vehicle Code, any trailer,
as defined in Section 630 of the Vehicle Code, any special
construction equipment, as defined in Section 565 of the Vehicle
Code, or any vessel, as defined in Section 21 of the Harbors and
Navigation Code in violation of former Section 487h, or a felony
violation of Section 496d regardless of whether or not the person
actually served a prior prison term for those offenses, is
subsequently convicted of any of these offenses shall be punished by
imprisonment in the state prison for two, three, or four years, or a
fine of ten thousand dollars ($10,000), or both the fine and the
imprisonment.
(b) For the purposes of this section, the terms "special
construction equipment" and "vessel" are limited to motorized
vehicles and vessels.
(c) The existence of any fact which would bring a person under
subdivision (a) shall be alleged in the information or indictment and
either admitted by the defendant in open court, or found to be true
by the jury trying the issue of guilt or by the court where guilt is
established by plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
667. (a) (1) In compliance with subdivision (b) of Section 1385,
any person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense
committed in another jurisdiction which includes all of the elements
of any serious felony, shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement
for each such prior conviction on charges brought and tried
separately. The terms of the present offense and each enhancement
shall run consecutively.
(2) This subdivision shall not be applied when the punishment
imposed under other provisions of law would result in a longer term
of imprisonment. There is no requirement of prior incarceration or
commitment for this subdivision to apply.
(3) The Legislature may increase the length of the enhancement of
sentence provided in this subdivision by a statute passed by majority
vote of each house thereof.
(4) As used in this subdivision, "serious felony" means a serious
felony listed in subdivision (c) of Section 1192.7.
(5) This subdivision shall not apply to a person convicted of
selling, furnishing, administering, or giving, or offering to sell,
furnish, administer, or give to a minor any methamphetamine-related
drug or any precursors of methamphetamine unless the prior conviction
was for a serious felony described in subparagraph (24) of
subdivision (c) of Section 1192.7.
(b) It is the intent of the Legislature in enacting subdivisions
(b) to (i), inclusive, to ensure longer prison sentences and greater
punishment for those who commit a felony and have been previously
convicted of serious and/or violent felony offenses.
(c) Notwithstanding any other law, if a defendant has been
convicted of a felony and it has been pled and proved that the
defendant has one or more prior felony convictions as defined in
subdivision (d), the court shall adhere to each of the following:
(1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent felony conviction.
(2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
(3) The length of time between the prior felony conviction and the
current felony conviction shall not affect the imposition of
sentence.
(4) There shall not be a commitment to any other facility other
than the state prison. Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
(5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
(6) If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to subdivision (e).
(7) If there is a current conviction for more than one serious or
violent felony as described in paragraph (6), the court shall impose
the sentence for each conviction consecutive to the sentence for any
other conviction for which the defendant may be consecutively
sentenced in the manner prescribed by law.
(8) Any sentence imposed pursuant to subdivision (e) will be
imposed consecutive to any other sentence which the defendant is
already serving, unless otherwise provided by law.
(d) Notwithstanding any other law and for the purposes of
subdivisions (b) to (i), inclusive, a prior conviction of a felony
shall be defined as:
(1) Any offense defined in subdivision (c) of Section 667.5 as a
violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state. The determination of
whether a prior conviction is a prior felony conviction for purposes
of subdivisions (b) to (i), inclusive, shall be made upon the date of
that prior conviction and is not affected by the sentence imposed
unless the sentence automatically, upon the initial sentencing,
converts the felony to a misdemeanor. None of the following
dispositions shall affect the determination that a prior conviction
is a prior felony for purposes of subdivisions (b) to (i), inclusive:
(A) The suspension of imposition of judgment or sentence.
(B) The stay of execution of sentence.
(C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.
(D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
(2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state
prison. A prior conviction of a particular felony shall include a
conviction in another jurisdiction for an offense that includes all
of the elements of the particular felony as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior felony
conviction for purposes of sentence enhancement if:
(A) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(B) The prior offense is listed in subdivision (b) of Section 707
of the Welfare and Institutions Code or described in paragraph (1) or
(2) as a felony.
(C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law.
(D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
(e) For purposes of subdivisions (b) to (i), inclusive, and in
addition to any other enhancement or punishment provisions which may
apply, the following shall apply where a defendant has a prior felony
conviction:
(1) If a defendant has one prior felony conviction that has been
pled and proved, the determinate term or minimum term for an
indeterminate term shall be twice the term otherwise provided as
punishment for the current felony conviction.
(2) (A) If a defendant has two or more prior felony convictions as
defined in subdivision (d) that have been pled and proved, the term
for the current felony conviction shall be an indeterminate term of
life imprisonment with a minimum term of the indeterminate sentence
calculated as the greater of:
(i) Three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions.
(ii) Imprisonment in the state prison for 25 years.
(iii) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) shall be
served consecutive to any other term of imprisonment for which a
consecutive term may be imposed by law. Any other term imposed
subsequent to any indeterminate term described in subparagraph (A)
shall not be merged therein but shall commence at the time the person
would otherwise have been released from prison.
(f) (1) Notwithstanding any other law, subdivisions (b) to (i),
inclusive, shall be applied in every case in which a defendant has a
prior felony conviction as defined in subdivision (d). The
prosecuting attorney shall plead and prove each prior felony
conviction except as provided in paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior
felony conviction allegation in the furtherance of justice pursuant
to Section 1385, or if there is insufficient evidence to prove the
prior conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior felony conviction, the
court may dismiss or strike the allegation.
(g) Prior felony convictions shall not be used in plea bargaining
as defined in subdivision (b) of Section 1192.7. The prosecution
shall plead and prove all known prior felony convictions and shall
not enter into any agreement to strike or seek the dismissal of any
prior felony conviction allegation except as provided in paragraph
(2) of subdivision (f).
(h) All references to existing statutes in subdivisions (c) to
(g), inclusive, are to statutes as they existed on June 30, 1993.
(i) If any provision of subdivisions (b) to (h), inclusive, or the
application thereof to any person or circumstance is held invalid,
that invalidity shall not affect other provisions or applications of
those subdivisions which can be given effect without the invalid
provision or application, and to this end the provisions of those
subdivisions are severable.
(j) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
667.1. Notwithstanding subdivision (h) of Section 667, for all
offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g),
inclusive, of Section 667, are to those statutes as they existed on
the effective date of this act, including amendments made to those
statutes by the act enacted during the 2005-06 Regular Session that
amended this section.
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 18745, 18750, or 18755.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
667.51. (a) Any person who is convicted of violating Section 288 or
288.5 shall receive a five-year enhancement for a prior conviction
of an offense specified in subdivision (b).
(b) Section 261, 262, 264.1, 269, 285, 286, 288, 288a, 288.5, or
289, or any offense committed in another jurisdiction that includes
all of the elements of any of the offenses specified in this
subdivision.
(c) A violation of Section 288 or 288.5 by a person who has been
previously convicted two or more times of an offense specified in
subdivision (b) shall be punished by imprisonment in the state prison
for 15 years to life.
667.6. (a) Any person who is convicted of an offense specified in
subdivision (e) and who has been convicted previously of any of those
offenses shall receive a five-year enhancement for each of those
prior convictions.
(b) Any person who is convicted of an offense specified in
subdivision (e) and who has served two or more prior prison terms as
defined in Section 667.5 for any of those offenses shall receive a
10-year enhancement for each of those prior terms.
(c) In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
an offense specified in subdivision (e) if the crimes involve the
same victim on the same occasion. A term may be imposed consecutively
pursuant to this subdivision if a person is convicted of at least
one offense specified in subdivision (e). If the term is imposed
consecutively pursuant to this subdivision, it shall be served
consecutively to any other term of imprisonment, and shall commence
from the time the person otherwise would have been released from
imprisonment. The term shall not be included in any determination
pursuant to Section 1170.1. Any other term imposed subsequent to that
term shall not be merged therein but shall commence at the time the
person otherwise would have been released from prison.
(d) A full, separate, and consecutive term shall be imposed for
each violation of an offense specified in subdivision (e) if the
crimes involve separate victims or involve the same victim on
separate occasions.
In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court
shall consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect upon
his or her actions and nevertheless resumed sexually assaultive
behavior. Neither the duration of time between crimes, nor whether or
not the defendant lost or abandoned his or her opportunity to
attack, shall be, in and of itself, determinative on the issue of
whether the crimes in question occurred on separate occasions.
The term shall be served consecutively to any other term of
imprisonment and shall commence from the time the person otherwise
would have been released from imprisonment. The term shall not be
included in any determination pursuant to Section 1170.1. Any other
term imposed subsequent to that term shall not be merged therein but
shall commence at the time the person otherwise would have been
released from prison.
(e) This section shall apply to the following offenses:
(1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1), (4), or (5) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d) or (k), of Section 286.
(5) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) or (k), of Section 288a.
(8) Sexual penetration, in violation of subdivision (a) or (g) of
Section 289.
(9) As a present offense under subdivision (c) or (d), assault
with intent to commit a specified sexual offense, in violation of
Section 220.
(10) As a prior conviction under subdivision (a) or (b), an
offense committed in another jurisdiction that includes all of the
elements of an offense specified in this subdivision.
(f) In addition to any enhancement imposed pursuant to subdivision
(a) or (b), the court may also impose a fine not to exceed twenty
thousand dollars ($20,000) for anyone sentenced under those
provisions. The fine imposed and collected pursuant to this
subdivision shall be deposited in the Victim-Witness Assistance Fund
to be available for appropriation to fund child sexual exploitation
and child sexual abuse victim counseling centers and prevention
programs established pursuant to Section 13837. If the court orders a
fine to be imposed pursuant to this subdivision, the actual
administrative cost of collecting that fine, not to exceed 2 percent
of the total amount paid, may be paid into the general fund of the
county treasury for the use and benefit of the county.
667.61. (a) Except as provided in subdivision (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e) shall be punished by imprisonment in the state prison for 25
years to life.
(b) Except as provided in subdivision (a), (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e) shall be
punished by imprisonment in the state prison for 15 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288.
(9) Continuous sexual abuse of a child, in violation of Section
288.5.
(d) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent
in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the present offense in
violation of Section 205 or 206.
(4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
(5) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (2), (3), or (4) of this
subdivision.
(6) The defendant personally inflicted great bodily injury on the
victim or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8.
(7) The defendant personally inflicted bodily harm on the victim
who was under 14 years of age.
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation of
Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission of a
burglary in violation of Section 459.
(3) The defendant personally used a dangerous or deadly weapon or
a firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
(4) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
(5) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
(6) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
(7) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (1), (2), (3), (5), or (6)
of this subdivision.
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided
in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
proved, that circumstance or those circumstances shall be used as
the basis for imposing the term provided in subdivision (a), (b),
(j), (l), or (m) whichever is greater, rather than being used to
impose the punishment authorized under any other provision of law,
unless another provision of law provides for a greater penalty or the
punishment under another provision of law can be imposed in addition
to the punishment provided by this section. However, if any
additional circumstance or circumstances specified in subdivision (d)
or (e) have been pled and proved, the minimum number of
circumstances shall be used as the basis for imposing the term
provided in subdivision (a), (j), or (l) and any other additional
circumstance or circumstances shall be used to impose any punishment
or enhancement authorized under any other provision of law.
(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.
(h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n), the court shall impose a consecutive sentence for
each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.
(j) (1) Any person who is convicted of an offense specified in
subdivision (c), with the exception of a violation of subdivision (a)
of Section 288, upon a victim who is a child under 14 years of age
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e), shall be punished by imprisonment in the state prison for life
without the possibility of parole. Where the person was under 18
years of age at the time of the offense, the person shall be punished
by imprisonment in the state prison for 25 years to life.
(2) Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of age,
shall be punished by imprisonment in the state prison for 25 years to
life.
(k) As used in this section, "bodily harm" means any substantial
physical injury resulting from the use of force that is more than the
force necessary to commit an offense specified in subdivision (c).
(l) Any person who is convicted of an offense specified in
subdivision (n) under one or more of the circumstances specified in
subdivision (d) or under two or more of the circumstances specified
in subdivision (e), upon a victim who is a minor 14 years of age or
older shall be punished by imprisonment in the state prison for life
without the possibility of parole. If the person who was convicted
was under 18 years of age at the time of the offense, he or she shall
be punished by imprisonment in the state prison for 25 years to
life.
(m) Any person who is convicted of an offense specified in
subdivision (n) under one of the circumstances specified in
subdivision (e) against a minor 14 years of age or older shall be
punished by imprisonment in the state prison for 25 years to life.
(n) Subdivisions (l) and (m) shall apply to any of the following
offenses:
(1) Rape, in violation of paragraph (2) of subdivision (a) of
Section 261.
(2) Spousal rape, in violation of paragraph (1) of subdivision (a)
of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sexual penetration, in violation of paragraph (1) of
subdivision (a) of Section 289.
(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
Section 286, or in violation of subdivision (d) of Section 286.
(6) Oral copulation, in violation of paragraph (2) of subdivision
(c) of Section 288a, or in violation of subdivision (d) of Section
288a.
(o) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section, and is
either admitted by the defendant in open court or found to be true by
the trier of fact.
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; carjacking involving the use of a deadly weapon;
assault with intent to commit murder; assault with a deadly weapon;
assault with a force likely to produce great bodily injury; assault
with intent to commit rape, sodomy, oral copulation, sexual
penetration in violation of Section 289, or lewd and lascivious acts
on a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive device with
intent to murder in violation of Section 12308; exploding a
destructive device which causes bodily injury in violation of Section
12309, or mayhem or great bodily injury in violation of Section
12310; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 12303.3; any felony
in which the person inflicted great bodily injury as provided in
Section 12022.53 or 12022.7; or any felony punishable by death or
life imprisonment with or without the possibility of parole is a
habitual offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; carjacking involving the use of a deadly weapon;
assault with intent to commit murder; assault with a deadly weapon;
assault with a force likely to produce great bodily injury; assault
with intent to commit rape, sodomy, oral copulation, sexual
penetration in violation of Section 289, or lewd and lascivious acts
on a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive device with
intent to murder in violation of Section 18745; exploding a
destructive device which causes bodily injury in violation of Section
18750, or mayhem or great bodily injury in violation of Section
18755; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 18740; any felony in
which the person inflicted great bodily injury as provided in Section
12022.53 or 12022.7; or any felony punishable by death or life
imprisonment with or without the possibility of parole is a habitual
offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.70. Any person who is convicted of murder, which was committed
prior to June 3, 1998, and sentenced pursuant to paragraph (1) of
subdivision (a) of Section 667.7, shall be eligible only for credit
pursuant to subdivisions (a), (b), and (c) of Section 2931.
667.71. (a) For the purpose of this section, a habitual sexual
offender is a person who has been previously convicted of one or more
of the offenses specified in subdivision (c) and who is convicted in
the present proceeding of one of those offenses.
(b) A habitual sexual offender shall be punished by imprisonment
in the state prison for 25 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (a) or (b)
of Section 288.
(5) Sexual penetration, in violation of subdivision (a) or (j) of
Section 289.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Sodomy, in violation of subdivision (c) or (d) of Section 286.
(8) Oral copulation, in violation of subdivision (c) or (d) of
Section 288a.
(9) Kidnapping, in violation of subdivision (b) of Section 207.
(10) Kidnapping, in violation of former subdivision (d) of Section
208 (kidnapping to commit specified sex offenses).
(11) Kidnapping, in violation of subdivision (b) of Section 209
with the intent to commit a specified sexual offense.
(12) Aggravated sexual assault of a child, in violation of Section
269.
(13) An offense committed in another jurisdiction that includes
all of the elements of an offense specified in this subdivision.
(d) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any prior conviction specified in subdivision (c) for any person who
is subject to punishment under this section.
(e) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(f) This section shall apply only if the defendant's status as a
habitual sexual offender is alleged in the accusatory pleading, and
either admitted by the defendant in open court, or found to be true
by the trier of fact.
667.75. Any person convicted of a violation of Section 11353,
11353.5, 11361, 11380, or 11380.5 of the Health and Safety Code who
has previously served two or more prior separate prison terms, as
defined in Section 667.5, for a violation of Section 11353, 11353.5,
11361, 11380, or 11380.5 of the Health and Safety Code, may be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 17 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, whichever is
greatest. The provisions of Article 2.5 (commencing with Section
2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any
minimum term in a state prison imposed pursuant to this section, but
the person shall not otherwise be released on parole prior to that
time. No prior prison term shall be used for this determination which
was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.8. (a) Except as provided in subdivision (b), any person
convicted of a felony violation of Section 261, 262, 264.1, 286,
288a, or 289 who, for the purpose of committing that sexual offense,
kidnapped the victim in violation of Section 207 or 209, shall be
punished by an additional term of nine years.
(b) Any person convicted of a felony violation of subdivision (c)
of Section 286, Section 288, or subdivision (c) of Section 288a who,
for t
654. (a) An act or omission that is punishable in different ways by
different provisions of law shall be punished under the provision
that provides for the longest potential term of imprisonment, but in
no case shall the act or omission be punished under more than one
provision. An acquittal or conviction and sentence under any one bars
a prosecution for the same act or omission under any other.
(b) Notwithstanding subdivision (a), a defendant sentenced
pursuant to subdivision (a) shall not be granted probation if any of
the provisions that would otherwise apply to the defendant prohibits
the granting of probation.
654.1. It shall be unlawful for any person, acting individually or
as an officer or employee of a corporation, or as a member of a
copartnership or as a commission agent or employee of another person,
firm or corporation, to sell or offer for sale or, to negotiate,
provide or arrange for, or to advertise or hold himself out as one
who sells or offers for sale or negotiates, provides or arranges for
transportation of a person or persons on an individual fare basis
over the public highways of the State of California unless such
transportation is to be furnished or provided solely by, and such
sale is authorized by, a carrier having a valid and existing
certificate of convenience and necessity, or other valid and existing
permit from the Public Utilities Commission of the State of
California, or from the Interstate Commerce Commission of the United
States, authorizing the holder of such certificate or permit to
provide such transportation.
654.2. The provisions of Section 654.1 of the Penal Code shall not
apply to the selling, furnishing, or providing of transportation of
any person or persons in any of the following circumstances:
(a) When no compensation is paid or to be paid, either directly or
indirectly, for the transportation.
(b) For the furnishing or providing of transportation to or from
work of employees engaged in farmwork on any farm of the State of
California.
(c) For the furnishing or providing of transportation to and from
work of employees of any nonprofit cooperative association, organized
pursuant to any law of the State of California.
(d) For the transportation of persons wholly or substantially
within the limits of a single municipality or of contiguous
municipalities.
(e) For transportation of persons over a route wholly or partly
within a national park or state park where the transportation is sold
in conjunction with, or as part of, a rail trip or trip over a
regularly operated motorbus transportation system or line.
(f) For the transportation of persons between home and work
locations or of persons having a common work-related trip purpose in
a vehicle having a seating capacity of 15 passengers or less,
including the driver, which is used for the purpose of ridesharing,
as defined in Section 522 of the Vehicle Code, when the ridesharing
is incidental to another purpose of the driver. This exemption does
not apply if the primary purpose for the transportation of those
persons is to make a profit. "Profit," as used in this subdivision,
does not include the recovery of the actual costs incurred in owning
and operating a vanpool vehicle, as defined in Section 668 of the
Vehicle Code.
654.3. Violation of Section 654.1 shall be a misdemeanor, and upon
first conviction the punishment shall be a fine of not over five
hundred dollars ($500), or imprisonment in jail for not over 90 days,
or both such fine and imprisonment. Upon second conviction the
punishment shall be imprisonment in jail for not less than 30 days
and not more than 180 days. Upon a third or subsequent conviction the
punishment shall be confinement in jail for not less than 90 days
and not more than one year, and a person suffering three or more
convictions shall not be eligible to probation, the provisions of any
law to the contrary notwithstanding.
655. An act or omission declared punishable by this Code is not
less so because it is also punishable under the laws of another
State, Government, or country, unless the contrary is expressly
declared.
656. Whenever on the trial of an accused person it appears that
upon a criminal prosecution under the laws of the United States, or
of another state or territory of the United States based upon the act
or omission in respect to which he or she is on trial, he or she has
been acquitted or convicted, it is a sufficient defense.
656.5. Any person convicted of a crime based upon an act or
omission for which he or she has been acquitted or convicted in
another country shall be entitled to credit for any actual time
served in custody in a penal institution in that country for the
crime, and for any additional time credits that would have actually
been awarded had the person been incarcerated in California.
656.6. No international treaties or laws shall be violated to
secure the return of a person who has been convicted in another
country of a crime committed in California in order to prosecute the
person in California.
657. A criminal act is not the less punishable as a crime because
it is also declared to be punishable as a contempt.
658. When it appears, at the time of passing sentence upon a person
convicted upon indictment, that such person has already paid a fine
or suffered an imprisonment for the act of which he stands convicted,
under an order adjudging it a contempt, the Court authorized to pass
sentence may mitigate the punishment to be imposed, in its
discretion.
659. Whenever an act is declared a misdemeanor, and no punishment
for counseling or aiding in the commission of such act is expressly
prescribed by law, every person who counsels or aids another in the
commission of such act is guilty of a misdemeanor.
660. In the various cases in which the sending of a letter is made
criminal by this Code, the offense is deemed complete from the time
when such letter is deposited in any Post Office or any other place,
or delivered to any person, with intent that it shall be forwarded.
661. In addition to the penalty affixed by express terms, to every
neglect or violation of official duty on the part of public officers,
State, county, city, or township, where it is not so expressly
provided, they may, in the discretion of the Court, be removed from
office.
662. No person is punishable for an omission to perform an act,
where such act has been performed by another person acting in his
behalf and competent by law to perform it.
663. Any person may be convicted of an attempt to commit a crime,
although it appears on the trial that the crime intended or attempted
was perpetrated by such person in pursuance of such attempt, unless
the Court, in its discretion, discharges the jury and directs such
person to be tried for such crime.
664. Every person who attempts to commit any crime, but fails, or
is prevented or intercepted in its perpetration, shall be punished
where no provision is made by law for the punishment of those
attempts, as follows:
(a) If the crime attempted is punishable by imprisonment in the
state prison, the person guilty of the attempt shall be punished by
imprisonment in the state prison for one-half the term of
imprisonment prescribed upon a conviction of the offense attempted.
However, if the crime attempted is willful, deliberate, and
premeditated murder, as defined in Section 189, the person guilty of
that attempt shall be punished by imprisonment in the state prison
for life with the possibility of parole. If the crime attempted is
any other one in which the maximum sentence is life imprisonment or
death, the person guilty of the attempt shall be punished by
imprisonment in the state prison for five, seven, or nine years. The
additional term provided in this section for attempted willful,
deliberate, and premeditated murder shall not be imposed unless the
fact that the attempted murder was willful, deliberate, and
premeditated is charged in the accusatory pleading and admitted or
found to be true by the trier of fact.
(b) If the crime attempted is punishable by imprisonment in a
county jail, the person guilty of the attempt shall be punished by
imprisonment in a county jail for a term not exceeding one-half the
term of imprisonment prescribed upon a conviction of the offense
attempted.
(c) If the offense so attempted is punishable by a fine, the
offender convicted of that attempt shall be punished by a fine not
exceeding one-half the largest fine which may be imposed upon a
conviction of the offense attempted.
(d) If a crime is divided into degrees, an attempt to commit the
crime may be of any of those degrees, and the punishment for the
attempt shall be determined as provided by this section.
(e) Notwithstanding subdivision (a), if attempted murder is
committed upon a peace officer or firefighter, as those terms are
defined in paragraphs (7) and (9) of subdivision (a) of Section
190.2, a custodial officer, as that term is defined in subdivision
(a) of Section 831 or subdivision (a) of Section 831.5, a custody
assistant, as that term is defined in subdivision (a) of Section
831.7, or a nonsworn uniformed employee of a sheriff's department
whose job entails the care or control of inmates in a detention
facility, as defined in subdivision (c) of Section 289.6, and the
person who commits the offense knows or reasonably should know that
the victim is a peace officer, firefighter, custodial officer,
custody assistant, or nonsworn uniformed employee of a sheriff's
department engaged in the performance of his or her duties, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for life with the possibility of parole.
This subdivision shall apply if it is proven that a direct but
ineffectual act was committed by one person toward killing another
human being and the person committing the act harbored express malice
aforethought, namely, a specific intent to unlawfully kill another
human being. The Legislature finds and declares that this paragraph
is declaratory of existing law.
(f) Notwithstanding subdivision (a), if the elements of
subdivision (e) are proven in an attempted murder and it is also
charged and admitted or found to be true by the trier of fact that
the attempted murder was willful, deliberate, and premeditated, the
person guilty of the attempt shall be punished by imprisonment in the
state prison for 15 years to life. Article 2.5 (commencing with
Section 2930) of Chapter 7 of Title 1 of Part 3 shall not apply to
reduce this minimum term of 15 years in state prison, and the person
shall not be released prior to serving 15 years' confinement.
665. Sections 663 and 664 do not protect a person who, in
attempting unsuccessfully to commit a crime, accomplishes the
commission of another and different crime, whether greater or less in
guilt, from suffering the punishment prescribed by law for the crime
committed.
666. (a) Notwithstanding Section 490, every person who, having been
convicted three or more times of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496 and having served a
term therefor in any penal institution or having been imprisoned
therein as a condition of probation for that offense, is subsequently
convicted of petty theft, then the person convicted of that
subsequent offense is punishable by imprisonment in the county jail
not exceeding one year, or in the state prison.
(b) Notwithstanding Section 490, any person described in paragraph
(1) who, having been convicted of petty theft, grand theft, auto
theft under Section 10851 of the Vehicle Code, burglary, carjacking,
robbery, or a felony violation of Section 496, and having served a
term of imprisonment therefor in any penal institution or having been
imprisoned therein as a condition of probation for that offense, who
is subsequently convicted of petty theft, is punishable by
imprisonment in the county jail not exceeding one year, or in the
state prison.
(1) This subdivision shall apply to any person who is required to
register pursuant to the Sex Offender Registration Act, or who has a
prior violent or serious felony conviction, as specified in
subdivision (c) of Section 667.5 or subdivision (c) of Section
1192.7.
(2) This subdivision shall not be construed to preclude
prosecution or punishment pursuant to subdivisions (b) to (i),
inclusive, of Section 667, or Section 1170.12.
666.5. (a) Every person who, having been previously convicted of a
felony violation of Section 10851 of the Vehicle Code, or felony
grand theft involving an automobile in violation of subdivision (d)
of Section 487 or former subdivision (3) of Section 487, as that
section read prior to being amended by Section 4 of Chapter 1125 of
the Statutes of 1993, or felony grand theft involving a motor
vehicle, as defined in Section 415 of the Vehicle Code, any trailer,
as defined in Section 630 of the Vehicle Code, any special
construction equipment, as defined in Section 565 of the Vehicle
Code, or any vessel, as defined in Section 21 of the Harbors and
Navigation Code in violation of former Section 487h, or a felony
violation of Section 496d regardless of whether or not the person
actually served a prior prison term for those offenses, is
subsequently convicted of any of these offenses shall be punished by
imprisonment in the state prison for two, three, or four years, or a
fine of ten thousand dollars ($10,000), or both the fine and the
imprisonment.
(b) For the purposes of this section, the terms "special
construction equipment" and "vessel" are limited to motorized
vehicles and vessels.
(c) The existence of any fact which would bring a person under
subdivision (a) shall be alleged in the information or indictment and
either admitted by the defendant in open court, or found to be true
by the jury trying the issue of guilt or by the court where guilt is
established by plea of guilty or nolo contendere or by trial by the
court sitting without a jury.
667. (a) (1) In compliance with subdivision (b) of Section 1385,
any person convicted of a serious felony who previously has been
convicted of a serious felony in this state or of any offense
committed in another jurisdiction which includes all of the elements
of any serious felony, shall receive, in addition to the sentence
imposed by the court for the present offense, a five-year enhancement
for each such prior conviction on charges brought and tried
separately. The terms of the present offense and each enhancement
shall run consecutively.
(2) This subdivision shall not be applied when the punishment
imposed under other provisions of law would result in a longer term
of imprisonment. There is no requirement of prior incarceration or
commitment for this subdivision to apply.
(3) The Legislature may increase the length of the enhancement of
sentence provided in this subdivision by a statute passed by majority
vote of each house thereof.
(4) As used in this subdivision, "serious felony" means a serious
felony listed in subdivision (c) of Section 1192.7.
(5) This subdivision shall not apply to a person convicted of
selling, furnishing, administering, or giving, or offering to sell,
furnish, administer, or give to a minor any methamphetamine-related
drug or any precursors of methamphetamine unless the prior conviction
was for a serious felony described in subparagraph (24) of
subdivision (c) of Section 1192.7.
(b) It is the intent of the Legislature in enacting subdivisions
(b) to (i), inclusive, to ensure longer prison sentences and greater
punishment for those who commit a felony and have been previously
convicted of serious and/or violent felony offenses.
(c) Notwithstanding any other law, if a defendant has been
convicted of a felony and it has been pled and proved that the
defendant has one or more prior felony convictions as defined in
subdivision (d), the court shall adhere to each of the following:
(1) There shall not be an aggregate term limitation for purposes
of consecutive sentencing for any subsequent felony conviction.
(2) Probation for the current offense shall not be granted, nor
shall execution or imposition of the sentence be suspended for any
prior offense.
(3) The length of time between the prior felony conviction and the
current felony conviction shall not affect the imposition of
sentence.
(4) There shall not be a commitment to any other facility other
than the state prison. Diversion shall not be granted nor shall the
defendant be eligible for commitment to the California Rehabilitation
Center as provided in Article 2 (commencing with Section 3050) of
Chapter 1 of Division 3 of the Welfare and Institutions Code.
(5) The total amount of credits awarded pursuant to Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall not exceed one-fifth of the total term of imprisonment imposed
and shall not accrue until the defendant is physically placed in the
state prison.
(6) If there is a current conviction for more than one felony
count not committed on the same occasion, and not arising from the
same set of operative facts, the court shall sentence the defendant
consecutively on each count pursuant to subdivision (e).
(7) If there is a current conviction for more than one serious or
violent felony as described in paragraph (6), the court shall impose
the sentence for each conviction consecutive to the sentence for any
other conviction for which the defendant may be consecutively
sentenced in the manner prescribed by law.
(8) Any sentence imposed pursuant to subdivision (e) will be
imposed consecutive to any other sentence which the defendant is
already serving, unless otherwise provided by law.
(d) Notwithstanding any other law and for the purposes of
subdivisions (b) to (i), inclusive, a prior conviction of a felony
shall be defined as:
(1) Any offense defined in subdivision (c) of Section 667.5 as a
violent felony or any offense defined in subdivision (c) of Section
1192.7 as a serious felony in this state. The determination of
whether a prior conviction is a prior felony conviction for purposes
of subdivisions (b) to (i), inclusive, shall be made upon the date of
that prior conviction and is not affected by the sentence imposed
unless the sentence automatically, upon the initial sentencing,
converts the felony to a misdemeanor. None of the following
dispositions shall affect the determination that a prior conviction
is a prior felony for purposes of subdivisions (b) to (i), inclusive:
(A) The suspension of imposition of judgment or sentence.
(B) The stay of execution of sentence.
(C) The commitment to the State Department of Health Services as a
mentally disordered sex offender following a conviction of a felony.
(D) The commitment to the California Rehabilitation Center or any
other facility whose function is rehabilitative diversion from the
state prison.
(2) A conviction in another jurisdiction for an offense that, if
committed in California, is punishable by imprisonment in the state
prison. A prior conviction of a particular felony shall include a
conviction in another jurisdiction for an offense that includes all
of the elements of the particular felony as defined in subdivision
(c) of Section 667.5 or subdivision (c) of Section 1192.7.
(3) A prior juvenile adjudication shall constitute a prior felony
conviction for purposes of sentence enhancement if:
(A) The juvenile was 16 years of age or older at the time he or
she committed the prior offense.
(B) The prior offense is listed in subdivision (b) of Section 707
of the Welfare and Institutions Code or described in paragraph (1) or
(2) as a felony.
(C) The juvenile was found to be a fit and proper subject to be
dealt with under the juvenile court law.
(D) The juvenile was adjudged a ward of the juvenile court within
the meaning of Section 602 of the Welfare and Institutions Code
because the person committed an offense listed in subdivision (b) of
Section 707 of the Welfare and Institutions Code.
(e) For purposes of subdivisions (b) to (i), inclusive, and in
addition to any other enhancement or punishment provisions which may
apply, the following shall apply where a defendant has a prior felony
conviction:
(1) If a defendant has one prior felony conviction that has been
pled and proved, the determinate term or minimum term for an
indeterminate term shall be twice the term otherwise provided as
punishment for the current felony conviction.
(2) (A) If a defendant has two or more prior felony convictions as
defined in subdivision (d) that have been pled and proved, the term
for the current felony conviction shall be an indeterminate term of
life imprisonment with a minimum term of the indeterminate sentence
calculated as the greater of:
(i) Three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior felony
convictions.
(ii) Imprisonment in the state prison for 25 years.
(iii) The term determined by the court pursuant to Section 1170
for the underlying conviction, including any enhancement applicable
under Chapter 4.5 (commencing with Section 1170) of Title 7 of Part
2, or any period prescribed by Section 190 or 3046.
(B) The indeterminate term described in subparagraph (A) shall be
served consecutive to any other term of imprisonment for which a
consecutive term may be imposed by law. Any other term imposed
subsequent to any indeterminate term described in subparagraph (A)
shall not be merged therein but shall commence at the time the person
would otherwise have been released from prison.
(f) (1) Notwithstanding any other law, subdivisions (b) to (i),
inclusive, shall be applied in every case in which a defendant has a
prior felony conviction as defined in subdivision (d). The
prosecuting attorney shall plead and prove each prior felony
conviction except as provided in paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior
felony conviction allegation in the furtherance of justice pursuant
to Section 1385, or if there is insufficient evidence to prove the
prior conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior felony conviction, the
court may dismiss or strike the allegation.
(g) Prior felony convictions shall not be used in plea bargaining
as defined in subdivision (b) of Section 1192.7. The prosecution
shall plead and prove all known prior felony convictions and shall
not enter into any agreement to strike or seek the dismissal of any
prior felony conviction allegation except as provided in paragraph
(2) of subdivision (f).
(h) All references to existing statutes in subdivisions (c) to
(g), inclusive, are to statutes as they existed on June 30, 1993.
(i) If any provision of subdivisions (b) to (h), inclusive, or the
application thereof to any person or circumstance is held invalid,
that invalidity shall not affect other provisions or applications of
those subdivisions which can be given effect without the invalid
provision or application, and to this end the provisions of those
subdivisions are severable.
(j) The provisions of this section shall not be amended by the
Legislature except by statute passed in each house by rollcall vote
entered in the journal, two-thirds of the membership concurring, or
by a statute that becomes effective only when approved by the
electors.
667.1. Notwithstanding subdivision (h) of Section 667, for all
offenses committed on or after the effective date of this act, all
references to existing statutes in subdivisions (c) to (g),
inclusive, of Section 667, are to those statutes as they existed on
the effective date of this act, including amendments made to those
statutes by the act enacted during the 2005-06 Regular Session that
amended this section.
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 12308, 12309, or 12310.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
667.5. Enhancement of prison terms for new offenses because of
prior prison terms shall be imposed as follows:
(a) Where one of the new offenses is one of the violent felonies
specified in subdivision (c), in addition to and consecutive to any
other prison terms therefor, the court shall impose a three-year term
for each prior separate prison term served by the defendant where
the prior offense was one of the violent felonies specified in
subdivision (c). However, no additional term shall be imposed under
this subdivision for any prison term served prior to a period of 10
years in which the defendant remained free of both prison custody and
the commission of an offense which results in a felony conviction.
(b) Except where subdivision (a) applies, where the new offense is
any felony for which a prison sentence is imposed, in addition and
consecutive to any other prison terms therefor, the court shall
impose a one-year term for each prior separate prison term served for
any felony; provided that no additional term shall be imposed under
this subdivision for any prison term served prior to a period of five
years in which the defendant remained free of both prison custody
and the commission of an offense which results in a felony
conviction.
(c) For the purpose of this section, "violent felony" shall mean
any of the following:
(1) Murder or voluntary manslaughter.
(2) Mayhem.
(3) Rape as defined in paragraph (2) or (6) of subdivision (a) of
Section 261 or paragraph (1) or (4) of subdivision (a) of Section
262.
(4) Sodomy as defined in subdivision (c) or (d) of Section 286.
(5) Oral copulation as defined in subdivision (c) or (d) of
Section 288a.
(6) Lewd or lascivious act as defined in subdivision (a) or (b) of
Section 288.
(7) Any felony punishable by death or imprisonment in the state
prison for life.
(8) Any felony in which the defendant inflicts great bodily injury
on any person other than an accomplice which has been charged and
proved as provided for in Section 12022.7, 12022.8, or 12022.9 on or
after July 1, 1977, or as specified prior to July 1, 1977, in
Sections 213, 264, and 461, or any felony in which the defendant uses
a firearm which use has been charged and proved as provided in
subdivision (a) of Section 12022.3, or Section 12022.5 or 12022.55.
(9) Any robbery.
(10) Arson, in violation of subdivision (a) or (b) of Section 451.
(11) Sexual penetration as defined in subdivision (a) or (j) of
Section 289.
(12) Attempted murder.
(13) A violation of Section 18745, 18750, or 18755.
(14) Kidnapping.
(15) Assault with the intent to commit a specified felony, in
violation of Section 220.
(16) Continuous sexual abuse of a child, in violation of Section
288.5.
(17) Carjacking, as defined in subdivision (a) of Section 215.
(18) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(19) Extortion, as defined in Section 518, which would constitute
a felony violation of Section 186.22 of the Penal Code.
(20) Threats to victims or witnesses, as defined in Section 136.1,
which would constitute a felony violation of Section 186.22 of the
Penal Code.
(21) Any burglary of the first degree, as defined in subdivision
(a) of Section 460, wherein it is charged and proved that another
person, other than an accomplice, was present in the residence during
the commission of the burglary.
(22) Any violation of Section 12022.53.
(23) A violation of subdivision (b) or (c) of Section 11418. The
Legislature finds and declares that these specified crimes merit
special consideration when imposing a sentence to display society's
condemnation for these extraordinary crimes of violence against the
person.
(d) For the purposes of this section, the defendant shall be
deemed to remain in prison custody for an offense until the official
discharge from custody or until release on parole, whichever first
occurs, including any time during which the defendant remains subject
to reimprisonment for escape from custody or is reimprisoned on
revocation of parole. The additional penalties provided for prior
prison terms shall not be imposed unless they are charged and
admitted or found true in the action for the new offense.
(e) The additional penalties provided for prior prison terms shall
not be imposed for any felony for which the defendant did not serve
a prior separate term in state prison.
(f) A prior conviction of a felony shall include a conviction in
another jurisdiction for an offense which, if committed in
California, is punishable by imprisonment in the state prison if the
defendant served one year or more in prison for the offense in the
other jurisdiction. A prior conviction of a particular felony shall
include a conviction in another jurisdiction for an offense which
includes all of the elements of the particular felony as defined
under California law if the defendant served one year or more in
prison for the offense in the other jurisdiction.
(g) A prior separate prison term for the purposes of this section
shall mean a continuous completed period of prison incarceration
imposed for the particular offense alone or in combination with
concurrent or consecutive sentences for other crimes, including any
reimprisonment on revocation of parole which is not accompanied by a
new commitment to prison, and including any reimprisonment after an
escape from incarceration.
(h) Serving a prison term includes any confinement time in any
state prison or federal penal institution as punishment for
commission of an offense, including confinement in a hospital or
other institution or facility credited as service of prison time in
the jurisdiction of the confinement.
(i) For the purposes of this section, a commitment to the State
Department of Mental Health as a mentally disordered sex offender
following a conviction of a felony, which commitment exceeds one year
in duration, shall be deemed a prior prison term.
(j) For the purposes of this section, when a person subject to the
custody, control, and discipline of the Director of Corrections is
incarcerated at a facility operated by the Department of the Youth
Authority, that incarceration shall be deemed to be a term served in
state prison.
(k) Notwithstanding subdivisions (d) and (g) or any other
provision of law, where one of the new offenses is committed while
the defendant is temporarily removed from prison pursuant to Section
2690 or while the defendant is transferred to a community facility
pursuant to Section 3416, 6253, or 6263, or while the defendant is on
furlough pursuant to Section 6254, the defendant shall be subject to
the full enhancements provided for in this section.
This subdivision shall not apply when a full, separate, and
consecutive term is imposed pursuant to any other provision of law.
667.51. (a) Any person who is convicted of violating Section 288 or
288.5 shall receive a five-year enhancement for a prior conviction
of an offense specified in subdivision (b).
(b) Section 261, 262, 264.1, 269, 285, 286, 288, 288a, 288.5, or
289, or any offense committed in another jurisdiction that includes
all of the elements of any of the offenses specified in this
subdivision.
(c) A violation of Section 288 or 288.5 by a person who has been
previously convicted two or more times of an offense specified in
subdivision (b) shall be punished by imprisonment in the state prison
for 15 years to life.
667.6. (a) Any person who is convicted of an offense specified in
subdivision (e) and who has been convicted previously of any of those
offenses shall receive a five-year enhancement for each of those
prior convictions.
(b) Any person who is convicted of an offense specified in
subdivision (e) and who has served two or more prior prison terms as
defined in Section 667.5 for any of those offenses shall receive a
10-year enhancement for each of those prior terms.
(c) In lieu of the term provided in Section 1170.1, a full,
separate, and consecutive term may be imposed for each violation of
an offense specified in subdivision (e) if the crimes involve the
same victim on the same occasion. A term may be imposed consecutively
pursuant to this subdivision if a person is convicted of at least
one offense specified in subdivision (e). If the term is imposed
consecutively pursuant to this subdivision, it shall be served
consecutively to any other term of imprisonment, and shall commence
from the time the person otherwise would have been released from
imprisonment. The term shall not be included in any determination
pursuant to Section 1170.1. Any other term imposed subsequent to that
term shall not be merged therein but shall commence at the time the
person otherwise would have been released from prison.
(d) A full, separate, and consecutive term shall be imposed for
each violation of an offense specified in subdivision (e) if the
crimes involve separate victims or involve the same victim on
separate occasions.
In determining whether crimes against a single victim were
committed on separate occasions under this subdivision, the court
shall consider whether, between the commission of one sex crime and
another, the defendant had a reasonable opportunity to reflect upon
his or her actions and nevertheless resumed sexually assaultive
behavior. Neither the duration of time between crimes, nor whether or
not the defendant lost or abandoned his or her opportunity to
attack, shall be, in and of itself, determinative on the issue of
whether the crimes in question occurred on separate occasions.
The term shall be served consecutively to any other term of
imprisonment and shall commence from the time the person otherwise
would have been released from imprisonment. The term shall not be
included in any determination pursuant to Section 1170.1. Any other
term imposed subsequent to that term shall not be merged therein but
shall commence at the time the person otherwise would have been
released from prison.
(e) This section shall apply to the following offenses:
(1) Rape, in violation of paragraph (2), (3), (6), or (7) of
subdivision (a) of Section 261.
(2) Spousal rape, in violation of paragraph (1), (4), or (5) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d) or (k), of Section 286.
(5) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d) or (k), of Section 288a.
(8) Sexual penetration, in violation of subdivision (a) or (g) of
Section 289.
(9) As a present offense under subdivision (c) or (d), assault
with intent to commit a specified sexual offense, in violation of
Section 220.
(10) As a prior conviction under subdivision (a) or (b), an
offense committed in another jurisdiction that includes all of the
elements of an offense specified in this subdivision.
(f) In addition to any enhancement imposed pursuant to subdivision
(a) or (b), the court may also impose a fine not to exceed twenty
thousand dollars ($20,000) for anyone sentenced under those
provisions. The fine imposed and collected pursuant to this
subdivision shall be deposited in the Victim-Witness Assistance Fund
to be available for appropriation to fund child sexual exploitation
and child sexual abuse victim counseling centers and prevention
programs established pursuant to Section 13837. If the court orders a
fine to be imposed pursuant to this subdivision, the actual
administrative cost of collecting that fine, not to exceed 2 percent
of the total amount paid, may be paid into the general fund of the
county treasury for the use and benefit of the county.
667.61. (a) Except as provided in subdivision (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e) shall be punished by imprisonment in the state prison for 25
years to life.
(b) Except as provided in subdivision (a), (j), (l), or (m), any
person who is convicted of an offense specified in subdivision (c)
under one of the circumstances specified in subdivision (e) shall be
punished by imprisonment in the state prison for 15 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (b) of
Section 288.
(5) Sexual penetration, in violation of subdivision (a) of Section
289.
(6) Sodomy, in violation of paragraph (2) or (3) of subdivision
(c), or subdivision (d), of Section 286.
(7) Oral copulation, in violation of paragraph (2) or (3) of
subdivision (c), or subdivision (d), of Section 288a.
(8) Lewd or lascivious act, in violation of subdivision (a) of
Section 288.
(9) Continuous sexual abuse of a child, in violation of Section
288.5.
(d) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) The defendant has been previously convicted of an offense
specified in subdivision (c), including an offense committed in
another jurisdiction that includes all of the elements of an offense
specified in subdivision (c).
(2) The defendant kidnapped the victim of the present offense and
the movement of the victim substantially increased the risk of harm
to the victim over and above that level of risk necessarily inherent
in the underlying offense in subdivision (c).
(3) The defendant inflicted aggravated mayhem or torture on the
victim or another person in the commission of the present offense in
violation of Section 205 or 206.
(4) The defendant committed the present offense during the
commission of a burglary of the first degree, as defined in
subdivision (a) of Section 460, with intent to commit an offense
specified in subdivision (c).
(5) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (2), (3), or (4) of this
subdivision.
(6) The defendant personally inflicted great bodily injury on the
victim or another person in the commission of the present offense in
violation of Section 12022.53, 12022.7, or 12022.8.
(7) The defendant personally inflicted bodily harm on the victim
who was under 14 years of age.
(e) The following circumstances shall apply to the offenses
specified in subdivision (c):
(1) Except as provided in paragraph (2) of subdivision (d), the
defendant kidnapped the victim of the present offense in violation of
Section 207, 209, or 209.5.
(2) Except as provided in paragraph (4) of subdivision (d), the
defendant committed the present offense during the commission of a
burglary in violation of Section 459.
(3) The defendant personally used a dangerous or deadly weapon or
a firearm in the commission of the present offense in violation of
Section 12022, 12022.3, 12022.5, or 12022.53.
(4) The defendant has been convicted in the present case or cases
of committing an offense specified in subdivision (c) against more
than one victim.
(5) The defendant engaged in the tying or binding of the victim or
another person in the commission of the present offense.
(6) The defendant administered a controlled substance to the
victim in the commission of the present offense in violation of
Section 12022.75.
(7) The defendant committed the present offense in violation of
Section 264.1, subdivision (d) of Section 286, or subdivision (d) of
Section 288a, and, in the commission of that offense, any person
committed any act described in paragraph (1), (2), (3), (5), or (6)
of this subdivision.
(f) If only the minimum number of circumstances specified in
subdivision (d) or (e) that are required for the punishment provided
in subdivision (a), (b), (j), (l), or (m) to apply have been pled and
proved, that circumstance or those circumstances shall be used as
the basis for imposing the term provided in subdivision (a), (b),
(j), (l), or (m) whichever is greater, rather than being used to
impose the punishment authorized under any other provision of law,
unless another provision of law provides for a greater penalty or the
punishment under another provision of law can be imposed in addition
to the punishment provided by this section. However, if any
additional circumstance or circumstances specified in subdivision (d)
or (e) have been pled and proved, the minimum number of
circumstances shall be used as the basis for imposing the term
provided in subdivision (a), (j), or (l) and any other additional
circumstance or circumstances shall be used to impose any punishment
or enhancement authorized under any other provision of law.
(g) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any of the circumstances specified in subdivision (d) or (e) for any
person who is subject to punishment under this section.
(h) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(i) For any offense specified in paragraphs (1) to (7), inclusive,
of subdivision (c), or in paragraphs (1) to (6), inclusive, of
subdivision (n), the court shall impose a consecutive sentence for
each offense that results in a conviction under this section if the
crimes involve separate victims or involve the same victim on
separate occasions as defined in subdivision (d) of Section 667.6.
(j) (1) Any person who is convicted of an offense specified in
subdivision (c), with the exception of a violation of subdivision (a)
of Section 288, upon a victim who is a child under 14 years of age
under one or more of the circumstances specified in subdivision (d)
or under two or more of the circumstances specified in subdivision
(e), shall be punished by imprisonment in the state prison for life
without the possibility of parole. Where the person was under 18
years of age at the time of the offense, the person shall be punished
by imprisonment in the state prison for 25 years to life.
(2) Any person who is convicted of an offense specified in
subdivision (c) under one of the circumstances specified in
subdivision (e), upon a victim who is a child under 14 years of age,
shall be punished by imprisonment in the state prison for 25 years to
life.
(k) As used in this section, "bodily harm" means any substantial
physical injury resulting from the use of force that is more than the
force necessary to commit an offense specified in subdivision (c).
(l) Any person who is convicted of an offense specified in
subdivision (n) under one or more of the circumstances specified in
subdivision (d) or under two or more of the circumstances specified
in subdivision (e), upon a victim who is a minor 14 years of age or
older shall be punished by imprisonment in the state prison for life
without the possibility of parole. If the person who was convicted
was under 18 years of age at the time of the offense, he or she shall
be punished by imprisonment in the state prison for 25 years to
life.
(m) Any person who is convicted of an offense specified in
subdivision (n) under one of the circumstances specified in
subdivision (e) against a minor 14 years of age or older shall be
punished by imprisonment in the state prison for 25 years to life.
(n) Subdivisions (l) and (m) shall apply to any of the following
offenses:
(1) Rape, in violation of paragraph (2) of subdivision (a) of
Section 261.
(2) Spousal rape, in violation of paragraph (1) of subdivision (a)
of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Sexual penetration, in violation of paragraph (1) of
subdivision (a) of Section 289.
(5) Sodomy, in violation of paragraph (2) of subdivision (c) of
Section 286, or in violation of subdivision (d) of Section 286.
(6) Oral copulation, in violation of paragraph (2) of subdivision
(c) of Section 288a, or in violation of subdivision (d) of Section
288a.
(o) The penalties provided in this section shall apply only if the
existence of any circumstance specified in subdivision (d) or (e) is
alleged in the accusatory pleading pursuant to this section, and is
either admitted by the defendant in open court or found to be true by
the trier of fact.
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; carjacking involving the use of a deadly weapon;
assault with intent to commit murder; assault with a deadly weapon;
assault with a force likely to produce great bodily injury; assault
with intent to commit rape, sodomy, oral copulation, sexual
penetration in violation of Section 289, or lewd and lascivious acts
on a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive device with
intent to murder in violation of Section 12308; exploding a
destructive device which causes bodily injury in violation of Section
12309, or mayhem or great bodily injury in violation of Section
12310; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 12303.3; any felony
in which the person inflicted great bodily injury as provided in
Section 12022.53 or 12022.7; or any felony punishable by death or
life imprisonment with or without the possibility of parole is a
habitual offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.7. (a) Any person convicted of a felony in which the person
inflicted great bodily injury as provided in Section 12022.53 or
12022.7, or personally used force which was likely to produce great
bodily injury, who has served two or more prior separate prison terms
as defined in Section 667.5 for the crime of murder; attempted
murder; voluntary manslaughter; mayhem; rape by force, violence, or
fear of immediate and unlawful bodily injury on the victim or another
person; oral copulation by force, violence, duress, menace, or fear
of immediate and unlawful bodily injury on the victim or another
person; sodomy by force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
lewd acts on a child under the age of 14 years by use of force,
violence, duress, menace, or fear of immediate and unlawful bodily
injury on the victim or another person; a violation of subdivision
(a) of Section 289 where the act is accomplished against the victim's
will by means of force, violence, duress, menace, or fear of
immediate and unlawful bodily injury on the victim or another person;
kidnapping as punished in former subdivision (d) of Section 208, or
for ransom, extortion, or robbery; robbery involving the use of force
or a deadly weapon; carjacking involving the use of a deadly weapon;
assault with intent to commit murder; assault with a deadly weapon;
assault with a force likely to produce great bodily injury; assault
with intent to commit rape, sodomy, oral copulation, sexual
penetration in violation of Section 289, or lewd and lascivious acts
on a child; arson of a structure; escape or attempted escape by an
inmate with force or violence in violation of subdivision (a) of
Section 4530, or of Section 4532; exploding a destructive device with
intent to murder in violation of Section 18745; exploding a
destructive device which causes bodily injury in violation of Section
18750, or mayhem or great bodily injury in violation of Section
18755; exploding a destructive device with intent to injure,
intimidate, or terrify, in violation of Section 18740; any felony in
which the person inflicted great bodily injury as provided in Section
12022.53 or 12022.7; or any felony punishable by death or life
imprisonment with or without the possibility of parole is a habitual
offender and shall be punished as follows:
(1) A person who served two prior separate prison terms shall be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 20 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, or any period
prescribed by Section 190 or 3046, whichever is greatest. Article 2.5
(commencing with Section 2930) of Chapter 7 of Title 1 of Part 3
shall apply to reduce any minimum term in a state prison imposed
pursuant to this section, but the person shall not otherwise be
released on parole prior to that time.
(2) Any person convicted of a felony specified in this subdivision
who has served three or more prior separate prison terms, as defined
in Section 667.5, for the crimes specified in subdivision (a) of
this section shall be punished by imprisonment in the state prison
for life without the possibility of parole.
(b) This section shall not prevent the imposition of the
punishment of death or imprisonment for life without the possibility
of parole. No prior prison term shall be used for this determination
which was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.70. Any person who is convicted of murder, which was committed
prior to June 3, 1998, and sentenced pursuant to paragraph (1) of
subdivision (a) of Section 667.7, shall be eligible only for credit
pursuant to subdivisions (a), (b), and (c) of Section 2931.
667.71. (a) For the purpose of this section, a habitual sexual
offender is a person who has been previously convicted of one or more
of the offenses specified in subdivision (c) and who is convicted in
the present proceeding of one of those offenses.
(b) A habitual sexual offender shall be punished by imprisonment
in the state prison for 25 years to life.
(c) This section shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) or (6) of subdivision (a)
of Section 261.
(2) Spousal rape, in violation of paragraph (1) or (4) of
subdivision (a) of Section 262.
(3) Rape, spousal rape, or sexual penetration, in concert, in
violation of Section 264.1.
(4) Lewd or lascivious act, in violation of subdivision (a) or (b)
of Section 288.
(5) Sexual penetration, in violation of subdivision (a) or (j) of
Section 289.
(6) Continuous sexual abuse of a child, in violation of Section
288.5.
(7) Sodomy, in violation of subdivision (c) or (d) of Section 286.
(8) Oral copulation, in violation of subdivision (c) or (d) of
Section 288a.
(9) Kidnapping, in violation of subdivision (b) of Section 207.
(10) Kidnapping, in violation of former subdivision (d) of Section
208 (kidnapping to commit specified sex offenses).
(11) Kidnapping, in violation of subdivision (b) of Section 209
with the intent to commit a specified sexual offense.
(12) Aggravated sexual assault of a child, in violation of Section
269.
(13) An offense committed in another jurisdiction that includes
all of the elements of an offense specified in this subdivision.
(d) Notwithstanding Section 1385 or any other provision of law,
the court shall not strike any allegation, admission, or finding of
any prior conviction specified in subdivision (c) for any person who
is subject to punishment under this section.
(e) Notwithstanding any other provision of law, probation shall
not be granted to, nor shall the execution or imposition of sentence
be suspended for, any person who is subject to punishment under this
section.
(f) This section shall apply only if the defendant's status as a
habitual sexual offender is alleged in the accusatory pleading, and
either admitted by the defendant in open court, or found to be true
by the trier of fact.
667.75. Any person convicted of a violation of Section 11353,
11353.5, 11361, 11380, or 11380.5 of the Health and Safety Code who
has previously served two or more prior separate prison terms, as
defined in Section 667.5, for a violation of Section 11353, 11353.5,
11361, 11380, or 11380.5 of the Health and Safety Code, may be
punished by imprisonment in the state prison for life and shall not
be eligible for release on parole for 17 years, or the term
determined by the court pursuant to Section 1170 for the underlying
conviction, including any enhancement applicable under Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2, whichever is
greatest. The provisions of Article 2.5 (commencing with Section
2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce any
minimum term in a state prison imposed pursuant to this section, but
the person shall not otherwise be released on parole prior to that
time. No prior prison term shall be used for this determination which
was served prior to a period of 10 years in which the person
remained free of both prison custody and the commission of an offense
which results in a felony conviction. As used in this section, a
commitment to the Department of the Youth Authority after conviction
for a felony shall constitute a prior prison term. The term imposed
under this section shall be imposed only if the prior prison terms
are alleged under this section in the accusatory pleading, and either
admitted by the defendant in open court, or found to be true by the
jury trying the issue of guilt or by the court where guilt is
established by a plea of guilty or nolo contendere or by a trial by
the court sitting without a jury.
667.8. (a) Except as provided in subdivision (b), any person
convicted of a felony violation of Section 261, 262, 264.1, 286,
288a, or 289 who, for the purpose of committing that sexual offense,
kidnapped the victim in violation of Section 207 or 209, shall be
punished by an additional term of nine years.
(b) Any person convicted of a felony violation of subdivision (c)
of Section 286, Section 288, or subdivision (c) of Section 288a who,
for t
