California Assembly Bill AB633 Amended / Bill

 BILL NUMBER: AB 633AMENDED BILL TEXT AMENDED IN ASSEMBLY JANUARY 4, 2010 INTRODUCED BY Assembly Member Ammiano FEBRUARY 25, 2009  An act to amend Section 190.4 of the Penal Code, relating to the death penalty.   An act to amend Section 2636 of the Penal Code, relating to the Department of Corrections and Rehabilitation.  LEGISLATIVE COUNSEL'S DIGEST AB 633, as amended, Ammiano.  Death penalty.   Department of Corrections and Rehabilitation: inmates and wards: classification.   Existing law requires the Department of Corrections and Rehabilitation to classify inmates and wards in order to prevent inmate and ward sexual violence and to promote inmate and ward safety, as specified. Existing law also requires the department to consider specified risk factors when classifying the inmate.   This bill would add the sexual orientation and gender identity of the inmate or ward, as specified, to the list of risk factors to be considered, and would provide related directions to the department.   The bill would prohibit this section from being construed to require or justify expansion or construction of department facilities.   Existing law, as amended by the Briggs Initiative at the November 7, 1978, statewide general election, provides that in any case in which the defendant has been found guilty of first degree murder by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and shall order a new jury impaneled to try the remaining alleged special circumstances. If such new jury is unable to reach the unanimous verdict that one or more of the special circumstances it is trying are true, the court is required to dismiss the jury and in the court' s discretion shall either order a new jury impaneled to try the issues the previous jury was unable to reach the unanimous verdict on, or impose a punishment of confinement in state prison for a term of 25 years.   This bill would instead provide that in any case in which the defendant has been found guilty of first degree murder by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and impose a punishment of confinement in state prison for a term of 25 years.   This bill would provide for the submission of its provisions to the voters for approval.  Vote: majority. Appropriation: no. Fiscal committee:  no   yes  . State-mandated local program: no. THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:  SECTION 1.   (a) The Legislature finds and declares that inmates and wards of the Department of Corrections and Rehabilitation may be at a heightened risk of sexual violence and abuse based on certain risk factors, including being young, being lesbian, gay, bisexual, or transgender, not having served a prior term of commitment, or having a history of mental illness.   (b) It is the intent of the Legislature in enacting this act to ensure that the Department of Corrections and Rehabilitation (1) recognizes that wards or inmates may be at increased risk based on these factors, and (2) provides vulnerable inmates or wards who are determined to be at risk with heightened protection in classification and housing decisions, without automatically subjecting them to highly restrictive or isolated settings or denying them access to programs and services.   SEC. 2.   Section 2636 of the   Penal Code   is amended to read:  2636. For the purposes of this section, all references to classification of wards shall take effect upon the adoption of a classification system for wards developed by the Department of Corrections and Rehabilitation in compliance with Farrell v. Allen, Alameda County Superior Court Case No. RG 03079344. The following practices shall be instituted to prevent sexual violence and promote inmate and ward safety in the Department of Corrections and Rehabilitation: (a) The Department of Corrections and Rehabilitation inmate classification and housing assignment procedures shall take into account risk factors that can lead to inmates and wards becoming the target of sexual victimization or of being sexually aggressive toward others. Relevant considerations include: (1) Age of the inmate or ward.  (2) Self-reported safety concerns related to the sexual orientation and gender identity of the inmate or ward.   (2)   (3)  Whether the offender is a violent or nonviolent offender.  (3)   (4)  Whether the inmate or ward has served a prior term of commitment.  (4)   (5)  Whether the inmate or ward has a history of mental illness. (b) The Department of Corrections and Rehabilitation shall ensure that staff members intervene when an inmate or ward appears to be the target of sexual harassment or intimidation.  (c) The Department of Corrections and Rehabilitation shall not require any inmate or ward to disclose or report his or her sexual orientation or gender identity at any time, and a disclosure or report shall not be discredited solely because it was not provided at an earlier point in time.   (d) The Department of Corrections and Rehabilitation is prohibited from disciplining or otherwise punishing an inmate or ward if the inmate or ward fails to disclose or report his or her sexual orientation or gender identity during all or part of his or her term of commitment.   (e) Nothing in this section shall be construed to require or justify expansion or construction of Department of Corrections and Rehabilitation facilities.   SECTION 1.   Section 190.4 of the Penal Code is amended to read: 190.4. (a) Whenever special circumstances as enumerated in Section 190.2 are alleged and the trier of fact finds the defendant guilty of first degree murder, the trier of fact shall also make a special finding on the truth of each alleged special circumstance. The determination of the truth of any or all of the special circumstances shall be made by the trier of fact on the evidence presented at the trial or at the hearing held pursuant to Subdivision (b) of Section 190.1. In case of a reasonable doubt as to whether a special circumstance is true, the defendant is entitled to a finding that is not true. The trier of fact shall make a special finding that each special circumstance charged is either true or not true. Whenever a special circumstance requires proof of the commission or attempted commission of a crime, such crime shall be charged and proved pursuant to the general law applying to the trial and conviction of the crime. If the defendant was convicted by the court sitting without a jury, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and by the people. If the trier of fact finds that any one or more of the special circumstances enumerated in Section 190.2 as charged is true, there shall be a separate penalty hearing, and neither the finding that any of the remaining special circumstances charged is not true, nor if the trier of fact is a jury, the inability of the jury to agree on the issue of the truth or untruth of any of the remaining special circumstances charged, shall prevent the holding of a separate penalty hearing. In any case in which the defendant has been found guilty by a jury, and the jury has been unable to reach an unanimous verdict that one or more of the special circumstances charged are true, and does not reach a unanimous verdict that all the special circumstances charged are not true, the court shall dismiss the jury and impose a punishment of confinement in state prison for a term of 25 years. (b) If defendant was convicted by the court sitting without a jury the trier of fact at the penalty hearing shall be a jury unless a jury is waived by the defendant and the people, in which case the trier of fact shall be the court. If the defendant was convicted by a plea of guilty, the trier of fact shall be a jury unless a jury is waived by the defendant and the people. If the trier of fact is a jury and has been unable to reach a unanimous verdict as to what the penalty shall be, the court shall dismiss the jury and shall order a new jury impaneled to try the issue as to what the penalty shall be. If such new jury is unable to reach a unanimous verdict as to what the penalty shall be, the court in its discretion shall either order a new jury or impose a punishment of confinement in state prison for a term of life without the possibility of parole. (c) If the trier of fact which convicted the defendant of a crime for which he may be subject to the death penalty was a jury, the same jury shall consider any plea of not guilty by reason of insanity pursuant to Section 1026, the truth of any special circumstances which may be alleged, and the penalty to be applied, unless for good cause shown the court discharges that jury in which case a new jury shall be drawn. The court shall state facts in support of the finding of good cause upon the record and cause them to be entered into the minutes. (d) In any case in which the defendant may be subject to the death penalty, evidence presented at any prior phase of the trial, including any proceeding under a plea of not guilty by reason of insanity pursuant to Section 1026 shall be considered an any subsequent phase of the trial, if the trier of fact of the prior phase is the same trier of fact at the subsequent phase. (e) In every case in which the trier of fact has returned a verdict or finding imposing the death penalty, the defendant shall be deemed to have made an application for modification of such verdict or finding pursuant to Subdivision 7 of Section 11. In ruling on the application, the judge shall review the evidence, consider, take into account, and be guided by the aggravating and mitigating circumstances referred to in Section 190.3, and shall make a determination as to whether the jury's findings and verdicts that the aggravating circumstances outweigh the mitigating circumstances are contrary to law or the evidence presented. The judge shall state on the record the reasons for his findings. The judge shall set forth the reasons for his ruling on the application and direct that they be entered on the Clerk's minutes. The denial of the modification of the death penalty verdict pursuant to subdivision (7) of Section 1181 shall be reviewed on the defendant' s automatic appeal pursuant to subdivision (b) of Section 1239. The granting of the application shall be reviewed on the People's appeal pursuant to paragraph (6).   SEC. 2.   Section 1 of this act affects an initiative statute and shall become effective only when submitted to, and approved by, the voters of California, pursuant to subdivision (c) of Section 10 of Article II of the California Constitution.