§ 1170.12. — 1170.12. (Amended by Stats. 2021, Ch. 626, Sec. 42.)

California § 1170.12.

• Jurisdiction: California
• Code PEN: Penal Code - PEN
• Title: 7.
• Part 2.: TITLE 7. OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL AND BEFORE JUDGMENT
• Ch. 4.5.: CHAPTER 4.5. Trial Court Sentencing
• Art. 1.: ARTICLE 1. Initial Sentencing

Text

(a)
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 serious or violent felony convictions, as defined in subdivision (b), 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 serious or violent 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 this section.
(7)
If there is a current conviction for more than one serious or violent felony as described in subdivision (b), 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.
(b)
Notwithstanding any other law and for the purposes of this section, a prior serious or violent conviction of a felony is 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 serious or violent felony conviction for
purposes of this section shall be made upon the date of that prior conviction and is not affected by the sentence imposed unless the sentence automatically, upon the initial sentencing, converts the felony to a misdemeanor. The following dispositions shall not affect the determination that a prior serious or violent conviction is a serious or violent felony for purposes of this section:
(A)
The suspension of imposition of judgment or sentence.
(B)
The stay of execution of sentence.
(C)
The commitment to the State Department of State Hospitals 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 prior conviction in another jurisdiction for an offense that, if committed in California, is punishable by imprisonment in the state prison constitutes a prior conviction of a particular serious or violent felony if the prior conviction in the other jurisdiction is for an offense that includes all of the elements of the particular violent felony as defined in subdivision (c) of Section 667.5 or serious felony as defined in subdivision (c) of Section 1192.7.
(3)
A prior juvenile adjudication constitutes a prior serious or violent felony conviction for the purposes of sentence enhancement if it meets all of the following criteria:
(A)
The juvenile was 16 years of age or older at the time the juvenile committed the prior offense.
(B)
The
prior offense is either of the following:
(i)
Listed in subdivision (b) of Section 707 of the Welfare and Institutions Code.
(ii)
Listed in this subdivision as a serious or violent 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.
(c)
For purposes of this section, and in addition to any other enhancements or punishment provisions that may apply, the following apply if a defendant has
one or more prior serious or violent felony convictions:
(1)
If a defendant has one prior serious or violent felony conviction as defined in subdivision (b) 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)
Except as provided in subparagraph (C), if a defendant has two or more prior serious or violent felony convictions, as defined in subdivision (b), 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 greatest of any of the following:
(i)
Three times the term otherwise provided as punishment for each current
felony conviction subsequent to the two or more prior serious or violent felony convictions.
(ii)
Twenty-five 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 an 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.
(C)
If a
defendant has two or more prior serious or violent felony convictions as defined in subdivision (c) of Section 667.5 or subdivision (c) of Section 1192.7 that have been pled and proved, and the current offense is not a felony described in paragraph (1) of subdivision (b), the defendant shall be sentenced pursuant to paragraph (1) of subdivision (c), unless the prosecution pleads and proves any of the following:
(i)
The current offense is a controlled substance charge, in which an allegation under Section 11370.4 or 11379.8 of the Health and Safety Code was admitted or found true.
(ii)
The current offense is a felony sex offense, defined in subdivision (d) of Section 261.5, or any felony offense that results in mandatory registration as a sex offender pursuant to subdivision (c) of Section 290 except for violations of Sections 266 and 285, paragraph (1) of subdivision (b) and
subdivision (e) of Section 286, paragraph (1) of subdivision (b) and subdivision (e) of Section 287, Section 314, and Section 311.11.
(iii)
During the commission of the current offense, the defendant used a firearm, was armed with a firearm or deadly weapon, or intended to cause great bodily injury to another person.
(iv)
The defendant suffered a prior conviction, as defined in subdivision (b), for any of the following serious or violent felonies:
(I)
A “sexually violent offense” as defined by subdivision (b) of Section 6600 of the Welfare and Institutions Code.
(II)
Oral copulation with a child who is under 14 years of age, and more than 10 years younger than the defendant as defined by Section 287 or former Section 288a, sodomy with another person who
is under 14 years of age and more than 10 years younger than the defendant as defined by Section 286, or sexual penetration with another person who is under 14 years of age and more than 10 years younger than the defendant as defined by Section 289.
(III)
A lewd or lascivious act involving a child under 14 years of age, in violation of Section 288.
(IV)
Any homicide offense, including any attempted homicide offense, defined in Sections 187 to 191.5, inclusive.
(V)
Solicitation to commit murder as defined in Section 653f.
(VI)
Assault with a machinegun on a peace officer or firefighter, as defined in paragraph (3) of subdivision (d) of Section 245.
(VII)
Possession of a weapon of mass
destruction, as defined in paragraph (1) of subdivision (a) of Section 11418.
(VIII)
Any serious or violent felony offense punishable in California by life imprisonment or death.
(d)
(1)
Notwithstanding any other law, this section shall be applied in every case in which a defendant has one or more prior serious or violent felony convictions as defined in this section. The prosecuting attorney shall plead and prove each prior serious or violent felony conviction except as provided in paragraph (2).
(2)
The prosecuting attorney may move to dismiss or strike a prior serious or violent felony conviction allegation in the furtherance of justice pursuant to Section 1385, or if there is insufficient evidence to prove the prior serious or violent conviction. If upon the satisfaction of the court that
there is insufficient evidence to prove the prior serious or violent felony conviction, the court may dismiss or strike the allegation. This section does not alter a court’s authority under Section 1385.
(e)
Prior serious or violent 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 serious or violent felony convictions and shall not enter into any agreement to strike or seek the dismissal of any prior serious or violent felony conviction allegation except as provided in paragraph (2) of subdivision (d).
(f)
If any provision of subdivisions (a) to (e), inclusive, or of Section 1170.126, or the application thereof to any person or circumstance is held invalid, that invalidity does not affect other provisions or applications of those subdivisions that can be given effect
without the invalid provision or application, and to this end the provisions of those subdivisions are severable.
(g)
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.

Legislative History

Amended by Stats. 2021, Ch. 626, Sec. 42. (AB 1171) Effective January 1, 2022.