CALIFORNIA CODES



PENAL CODE



SECTION 1170-1170.95



















1170.  (a) (1) The Legislature finds and declares that the purpose



of imprisonment for crime is punishment.  This purpose is best served



by terms proportionate to the seriousness of the offense with



provision for uniformity in the sentences of offenders committing the



same offense under similar circumstances.  The Legislature further



finds and declares that the elimination of disparity and the



provision of uniformity of sentences can best be achieved by



determinate sentences fixed by statute in proportion to the



seriousness of the offense as determined by the Legislature to be



imposed by the court with specified discretion.



   (2) Paragraph (1) shall not be construed to preclude programs,



including educational programs, that are designed to rehabilitate



nonviolent, first-time felony offenders.  The Legislature encourages



the development of policies and programs designed to educate and



rehabilitate nonviolent, first-time felony offenders consistent with



the purpose of imprisonment.



   (3) In any case in which the punishment prescribed by statute for



a person convicted of a public offense is a term of imprisonment in



the state prison of any specification of three time periods, the



court shall sentence the defendant to one of the terms of



imprisonment specified unless the convicted person is given any other



disposition provided by law, including a fine, jail, probation, or



the suspension of imposition or execution of sentence or is sentenced



pursuant to subdivision (b) of Section 1168 because he or she had



committed his or her crime prior to July 1, 1977.  In sentencing the



convicted person, the court shall apply the sentencing rules of the



Judicial Council.  The court, unless it determines that there are



circumstances in mitigation of the punishment prescribed, shall also



impose any other term which it is required by law to impose as an



additional term.  Nothing in this article shall affect any provision



of law which imposes the death penalty, which authorizes or restricts



the granting of probation or suspending the execution or imposition



of sentence, or expressly provides for imprisonment in the state



prison for life.  In any case in which the amount of preimprisonment



credit under Section 2900.5 or any other provision of law is equal to



or exceeds any sentence imposed pursuant to this chapter, the entire



sentence, including any period of parole under Section 3000, shall



be deemed to have been served and the defendant shall not be actually



delivered to the custody of the Director of Corrections.  However,



that sentence shall be deemed a separate prior prison term under



Section 667.5, and a copy of the judgment and other necessary



documentation shall be forwarded to the Director of Corrections.



   (b) When a judgment of imprisonment is to be imposed and the



statute specifies three possible terms, the court shall order



imposition of the middle term, unless there are circumstances in



aggravation or mitigation of the crime.  At least four days prior to



the time set for imposition of judgment, either party or the victim,



or the family of the victim if the victim is deceased, may submit a



statement in aggravation or mitigation to dispute facts in the record



or the probation officer's report, or to present additional facts.



In determining whether there are circumstances that justify



imposition of the upper or lower term, the court may consider the



record in the case, the probation officer's report, other reports



including reports received pursuant to Section 1203.03 and statements



in aggravation or mitigation submitted by the prosecution, the



defendant, or the victim, or the family of the victim if the victim



is deceased, and any further evidence introduced at the sentencing



hearing.  The court shall set forth on the record the facts and



reasons for imposing the upper or lower term.  The court may not



impose an upper term by using the fact of any enhancement upon which



sentence is imposed under Section 667.5, 1170.1, 12022, 12022.4,



12022.5, 12022.6, or 12022.7, or under any other provision of law.  A



term of imprisonment shall not be specified if imposition of



sentence is suspended.



   (c) The court shall state the reasons for its sentence choice on



the record at the time of sentencing.  The court shall also inform



the defendant that as part of the sentence after expiration of the



term he or she may be on parole for a period as provided in Section



3000.



   (d) When a defendant subject to this section or subdivision (b) of



Section 1168 has been sentenced to be imprisoned in the state prison



and has been committed to the custody of the Director of



Corrections, the court may, within 120 days of the date of commitment



on its own motion, or at any time upon the recommendation of the



Director of Corrections or the Board of Prison Terms, recall the



sentence and commitment previously ordered and resentence the



defendant in the same manner as if he or she had not previously been



sentenced, provided the new sentence, if any, is no greater than the



initial sentence.  The resentence under this subdivision shall apply



the sentencing rules of the Judicial Council so as to eliminate



disparity of sentences and to promote uniformity of sentencing.



Credit shall be given for time served.



   (e) (1) Notwithstanding any other law and consistent with



paragraph (1) of subdivision (a) of Section 1170, if the Director of



Corrections or the Board of Prison Terms or both determine that a



prisoner satisfies the criteria set forth in paragraph (2), the



director or the board may recommend to the court that the prisoner's



sentence be recalled.



   (2) The court shall have the discretion to resentence or recall if



the court finds both of the following:



   (A) The prisoner is terminally ill with an incurable condition



caused by an illness or disease that would produce death within six



months, as determined by a physician employed by the department.



   (B) The conditions under which the prisoner would be released or



receive treatment do not pose a threat to public safety.



   The Board of Prison Terms shall make findings pursuant to this



subdivision before making a recommendation for resentence or recall



to the court.  This subdivision does not apply to a prisoner



sentenced to death or a term of life without the possibility of



parole.



   (3) Within 10 days of receipt of a positive recommendation by the



director or the board, the court shall hold a hearing to consider



whether the prisoner's sentence should be recalled.



   (4) The prisoner or his or her family member or designee may



request consideration for recall and resentencing by contacting the



chief medical officer at the prison or the Director of Corrections.



Upon receipt of the request, if the director determines that the



prisoner satisfies the criteria set forth in paragraph (2), the



director or board may recommend to the court that the prisoner's



sentence be recalled.  The director shall submit a recommendation for



release within 30 days in the case of inmates sentenced to



determinate terms and, in the case of inmates sentenced to



indeterminate terms, the director may make a recommendation to the



Board of Prison Terms with respect to the inmates who have applied



under this section.  The board shall consider this information and



make an independent judgment pursuant to paragraph (2) and make



findings related thereto before rejecting the request or making a



recommendation to the court.  This action shall be taken at the next



lawfully noticed board meeting.



   (5) Any recommendation for recall submitted to the court by the



Director of Corrections or the Board of Prison Terms shall include



one or more medical evaluations, a postrelease plan, and findings



pursuant to paragraph (2).



   (6) If possible, the matter shall be heard before the same judge



of the court who sentenced the prisoner.



   (f) Any sentence imposed under this article shall be subject to



the provisions of Sections 3000 and 3057 and any other applicable



provisions of law.



   (g) A sentence to state prison for a determinate term for which



only one term is specified, is a sentence to state prison under this



section.















1170.1.  (a) Except as provided in subdivisions (b) and (c), and



subject to Section 654, when any person is convicted of two or more



felonies, whether in the same proceeding or court or in different



proceedings or courts, and whether by judgment rendered by the same



or by a different court, and a consecutive term of imprisonment is



imposed under Sections 669 and 1170, the aggregate term of



imprisonment for all these convictions shall be the sum of the



principal term, the subordinate term, and any additional term imposed



for applicable enhancements for prior convictions, prior prison



terms, and Section 12022.1.  The principal term shall consist of the



greatest term of imprisonment imposed by the court for any of the



crimes, including any term imposed for applicable specific



enhancements.  The subordinate term for each consecutive offense



which is not a "violent felony," as defined in subdivision (c) of



Section 667.5, shall consist of one-third of the middle term of



imprisonment prescribed for each other felony conviction for an



offense that is not a violent felony for which a consecutive term of



imprisonment is imposed, and shall exclude any specific enhancements.



  Except as otherwise provided by law, the total of subordinate terms



for those consecutive offenses which are not "violent felonies," as



defined in subdivision (c) of Section 667.5, shall not exceed five



years.  The subordinate term for each consecutive offense which is a



"violent felony," as defined in any paragraph of subdivision (c) of



Section 667.5, shall consist of one-third of the middle term of



imprisonment prescribed for each other felony conviction for an



offense that is a violent felony for which a consecutive term of



imprisonment is imposed, and shall include one-third of the term



imposed for any specific enhancements applicable to those subordinate



offenses.



   (b) When a consecutive term of imprisonment is imposed under



Sections 669 and 1170 for two or more convictions for kidnapping, as



defined in Section 207 or 208, involving separate victims, the



aggregate term shall be calculated as provided in subdivision (a),



except that the subordinate term for each subsequent kidnapping



conviction shall consist of the full middle term for each kidnapping



conviction for which a consecutive term of imprisonment is imposed



and shall include the full term imposed for specific enhancements



applicable to those subordinate offenses.  The total of the



subordinate terms imposed pursuant to this subdivision may exceed



five years.



   (c) In the case of any person convicted of one or more felonies



committed while the person is confined in a state prison or is



subject to reimprisonment for escape from custody and the law either



requires the terms to be served consecutively or the court imposes



consecutive terms, the term of imprisonment for all the convictions



which the person is required to serve consecutively shall commence



from the time the person would otherwise have been released from



prison.  If the new offenses are consecutive with each other, the



principal and subordinate terms shall be calculated as provided in



subdivision (a), except that the total of subordinate terms may



exceed five years.  This subdivision shall be applicable in cases of



convictions of more than one offense in different proceedings, and



convictions of more than one offense in the same or different



proceedings.



   (d) When the court imposes a prison sentence for a felony pursuant



to Section 1170, the court shall also impose the additional terms



provided for any applicable enhancements.  The court shall also



impose any other additional term that the court determines in its



discretion or as required by law shall run consecutive to the term



imposed under Section 1170.  In considering the imposition of the



additional term, the court shall apply the sentencing rules of the



Judicial Council.



   (e) All enhancements shall be alleged in the accusatory pleading



and either admitted by the defendant in open court or found to be



true by the trier of fact.



   (f) When two or more enhancements may be imposed for being armed



with or using a dangerous or deadly weapon or a firearm in the



commission of a single offense, only the greatest of those



enhancements shall be imposed for that offense.  This subdivision



shall not limit the imposition of any other enhancements applicable



to that offense, including an enhancement for the infliction of great



bodily injury.



   (g) When two or more enhancements may be imposed for the



infliction of great bodily injury in the commission of a single



offense, only the greatest of those enhancements shall be imposed for



that offense.  This subdivision shall not limit the imposition of



any other enhancements applicable to that offense, including an



enhancement for being armed with or using a dangerous or deadly



weapon or firearm.



   (h) For any violation of paragraph (2), (3), or (6) of subdivision



(a) of Section 261, paragraph (1) or (4) of subdivision (a) of



Section 262, Section 264.1, subdivision (b) of Section 288,



subdivision (a) of Section 289, or sodomy or oral copulation by



force, violence, duress, menace, or fear of immediate and unlawful



bodily injury on the victim or another person as provided in Section



286 or 288a, the number of enhancements that may be imposed shall not



be limited, regardless of whether the enhancements are pursuant to



this section, Section 667.6, or some other section of law.  Each of



the enhancements shall be a full and separately served enhancement



and shall not be merged with any term or with any other enhancement.



















1170.11.  As used in Section 1170.1, the term "specific enhancement"



includes, but is not limited to, the enhancements provided in



Sections 186.10, 186.11, 186.22, 273.4, 290, 290.4, and 347,



subdivisions (a), (b), and (c) of Section 422.75, Sections 451.1,



452.1, 593a, 600, 667.8, 667.83, 667.85, 667.9, 667.10, 667.15,



667.16, 674, 12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5,



12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9,



12022.95, 12072, and 12280 of this code, and in Section 11353.1,



subdivision (b) of Section 11353.4, Sections 11353.6, 11356.5,



11370.4, 11379.7, 11379.8, 11380.1, and 11380.5 of the Health and



Safety Code, and in Sections 20001 and 23182 of the Vehicle Code.















1170.12.  (a) Notwithstanding any other provision of 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 (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 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 paragraph (6) of this subdivision, 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 this section will be imposed



consecutive to any other sentence which the defendant is already



serving, unless otherwise provided by law.



   (b) Notwithstanding any other provision of law and for the



purposes of this section, 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 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.  None of the following dispositions shall affect the



determination that a prior conviction is a prior 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 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 sixteen years of age or older at the time he



or she committed the prior offense, and



   (B) The prior offense is



   (i) listed in subdivision (b) of Section 707 of the Welfare and



Institutions Code, or



   (ii) listed in this subdivision as a felony, and



   (C) The juvenile was found to be a fit and proper subject to be



dealt with under the juvenile court law, and



   (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 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 paragraph (1) of 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 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, or



   (ii) twenty-five years or



   (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) of



paragraph (2) of this subdivision 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) of paragraph (2) of



this subdivision shall not be merged therein but shall commence at



the time the person would otherwise have been released from prison.



   (d) (1) Notwithstanding any other provision of law, this section



shall be applied in every case in which a defendant has a prior



felony conviction as defined in this section.  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.



   (e) 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 (d).















1170.13.  Notwithstanding subdivision (a) of Section 1170.1 which



provides for the imposition of a subordinate term for a consecutive



offense of one-third of the middle term of imprisonment, if a person



is convicted pursuant to subdivision (b) of Section 139, the



subordinate term for each consecutive offense shall consist of the



full middle term.  The total of the subordinate terms imposed



pursuant to this section may exceed five years.















1170.15.  Notwithstanding the provisions of subdivision (a) of



Section 1170.1 which provide for the imposition of a subordinate term



for a consecutive offense of one-third of the middle term of



imprisonment, if a person is convicted of a felony, and of an



additional felony which is a violation of Section 136.1 or 137 and



which was committed against the victim of, or a witness or potential



witness with respect to, or a person who was about to give material



information pertaining to, the first felony, or of a felony violation



of Section 653f which was committed to dissuade a witness or



potential witness to the first felony, the subordinate term for each



consecutive offense which is a felony described in this section shall



consist of the full middle term of imprisonment for the felony for



which a consecutive term of imprisonment is imposed, and shall



include the full term prescribed for any enhancements imposed



pursuant to Section 12022, 12022.5, or 12022.7.  The total of the



subordinate terms imposed pursuant to this section may exceed five



years.















1170.16.  In lieu of the term provided in Section 1170.1, a full,



separate, and consecutive term may be imposed for each violation of



subdivision (a) of Section 192, whether or not the offenses were



committed during a single transaction.











1170.2.  (a) In the case of any inmate who committed a felony prior



to July 1, 1977, who would have been sentenced under Section 1170 if



he or she had committed it after July 1, 1977, the Board of Prison



Terms shall determine what the length of time of imprisonment would



have been under Section 1170 without consideration of good-time



credit and utilizing the middle term of the offense bearing the



longest term of imprisonment of which the prisoner was convicted



increased by any enhancements justified by matters found to be true



and which were imposed by the court at the time of sentencing for



such felony.  These matters include:  being armed with a deadly or



dangerous weapon as specified in Section 211a, 460, 3024, or 12022



prior to July 1, 1977, which may result in a one-year enhancement



pursuant to the provisions of Section 12022; using a firearm as



specified in Section 12022.5 prior to July 1, 1977, which may result



in a two-year enhancement pursuant to the provisions of Section



12022.5; infliction of great bodily injury as specified in Section



213, 264, or 461 prior to July 1, 1977, which may result in a



three-year enhancement pursuant to the provisions of Section 12022.7;



any prior felony conviction as specified in any statute prior to



July 1, 1977, which prior felony conviction is the equivalent of a



prior prison term as defined in Section 667.5, which may result in



the appropriate enhancement pursuant to the provisions of Section



667.5; and any consecutive sentence.



   (b) If the calculation required under subdivision (a) is less than



the time to be served prior to a release date set prior to July 1,



1977, or if a release date had not been set, the Board of Prison



Terms shall establish the prisoner's parole date, subject to



subdivision (d), on the date calculated under subdivision (a) unless



at least two of the commissioners of the Board of Prison Terms after



reviewing the prisoner's file, determine that due to the number of



crimes of which the prisoner was convicted, or due to the number of



prior convictions suffered by the prisoner, or due to the fact that



the prisoner was armed with a deadly weapon when the crime was



committed, or used a deadly weapon during the commission of the



crime, or inflicted or attempted to inflict great bodily injury on



the victim of the crime, the prisoner should serve a term longer than



that calculated in subdivision (a), in which event the prisoner



shall be entitled to a hearing before a panel consisting of at least



two commissioners of the Board of Prison Terms as provided for in



Section 3041.5.  The Board of Prison Terms shall notify each prisoner



who is scheduled for such a hearing within 90 days of July 1, 1977,



or within 90 days of the date the prisoner is received by or returned



to the custody of the Department of Corrections, whichever is later.



The hearing shall be held before October 1, 1978, or within 120 days



of receipt of the prisoner, whichever is later.  It is the intent of



the Legislature that the hearings provided for in this subdivision



shall be accomplished in the most expeditious manner possible.  At



the hearing the prisoner shall be entitled to be represented by legal



counsel, a release date shall be set, and the prisoner shall be



informed in writing of the extraordinary factors specifically



considered determinative and on what basis the release date has been



calculated.  In fixing a term under this section the board shall be



guided by, but not limited to, the term which reasonably could be



imposed on a person who committed a similar offense under similar



circumstances on or after July 1, 1977, and further, the board shall



be guided by the following finding and declaration hereby made by the



Legislature:  that the necessity to protect the public from



repetition of extraordinary crimes of violence against the person is



the paramount consideration.



   (c) Nothing in this section shall be deemed to keep an inmate in



the custody of the Department of Corrections for a period of time



longer than he would have been kept in its custody under the



provisions of law applicable to him prior to July 1, 1977.  Nothing



in this section shall be deemed to require the release of an inmate



sentenced to consecutive sentences under the provisions of law



applicable to him prior to July 1, 1977, earlier than if he had been



sentenced to concurrent sentences.



   (d) In the case of any prisoner who committed a felony prior to



July 1, 1977, who would have been sentenced under Section 1170 if the



felony was committed on or after July 1, 1977, the good behavior and



participation provisions of Article 2.5 (commencing with Section



2930) of Chapter 7 of Title 1 of Part 3 shall apply from July 1,



1977, and thereafter.



   (e) In the case of any inmate who committed a felony prior to July



1, 1977, who would have been sentenced under Section 1168 if the



felony was committed on or after July 1, 1977, the Board of Prison



Terms shall provide for release from prison as provided for by this



code.



   (f) In the case of any inmate who committed a felony prior to July



1, 1977, the length, conditions, revocation, and other incidents of



parole shall be the same as if the prisoner had been sentenced for an



offense committed on or after July 1, 1977.



   (g) Nothing in this chapter shall affect the eligibility for



parole under Article 3 (commencing with Section 3040) of Chapter 8 of



Title 1 of Part 3 of an inmate sentenced pursuant to Section 1168 as



operative prior to July 1, 1977, for a period of parole as specified



in subdivision (b) of Section 3000.



   (h) In fixing a term under this section, the Board of Prison Terms



shall utilize the terms of imprisonment as provided in Chapter 1139



of the Statutes of 1976 and Chapter 165 of the Statutes of 1977.



















1170.3.  The Judicial Council shall seek to promote uniformity in



sentencing under Section 1170, by:



   (a) The adoption of rules providing criteria for the consideration



of the trial judge at the time of sentencing regarding the court's



decision to:



   (1) Grant or deny probation.



   (2) Impose the lower or upper prison term.



   (3) Impose concurrent or consecutive sentences.



   (4)  Determine whether or not to impose an enhancement where that



determination is permitted by law.



   (b) The adoption of rules standardizing the minimum content and



the sequential presentation of material in probation officer reports



submitted to the court.















1170.4.  The Judicial Council shall collect and analyze relevant



information relating to sentencing practices in this state and other



jurisdictions.  Such information shall be taken into consideration by



the Judicial Council in the adoption of rules pursuant to Section



1170.3.















1170.45.  The Judicial Council shall collect data on criminal cases



statewide relating to the disposition of those cases according to the



race and ethnicity of the defendant, and report annually thereon to



the Legislature beginning no later than January 1, 1999.  It is the



intent of the Legislature to appropriate funds to the Judicial



Council for this purpose.















1170.5.  The Judicial Council shall conduct annual sentencing



institutes for trial court judges pursuant to Section 68551 of the



Government Code, toward the end of assisting the judge in the



imposition of appropriate sentences.











1170.6.  The Judicial Council shall continually study and review the



statutory sentences and the operation of existing criminal penalties



and shall report to the Governor and to the appropriate policy



committees of the Legislature its analysis regarding this subject



matter and as to all proposed legislation affecting felony sentences.



  The review and analysis shall take into consideration all of the



following:



   (a) The nature of the offense with the degree of danger the



offense presents to society.



   (b) The penalty of the offense as compared to penalties for



offenses that are in their nature more serious.



   (c) The penalty of the offense as compared to penalties for the



same offense in other jurisdictions.



   (d) The penalty of the offense as compared to recommendations for



sentencing suggested by national commissions and other learned



bodies.











1170.7.  Robbery or attempted robbery for the purpose of obtaining



any controlled substance, as defined in Division 10 (commencing with



Section 11000) of the Health and Safety Code, when committed against



a pharmacist, pharmacy employee, or other person lawfully possessing



controlled substances, shall be considered a circumstance in



aggravation of the crime in imposing a term under subdivision (b) of



Section 1170.















1170.71.  The fact that a person who commits a violation of Section



288 has used obscene or harmful matter to induce, persuade, or



encourage the minor to engage in a lewd or lascivious act shall be



considered a circumstance in aggravation of the crime in imposing a



term under subdivision (b) of Section 1170.















1170.72.  Upon conviction of a violation of Section 11353, 11353.5,



11353.7, 11354, 11361, or 11380 of the Health and Safety Code, or a



finding of truth of an enhancing allegation pursuant to paragraph (3)



of subdivision (a) of Section 11353.1, Section 11353.6, or paragraph



(3) of subdivision (a) of Section 11380.1, the fact that the minor



was 11 years of age or younger shall be considered a circumstance in



aggravation when imposing a term under subdivision (b) of Section



1170.















1170.73.  Upon conviction of a felony violation of Section 11377,



11378, or 11378.5 of the Health and Safety Code, the court shall



consider the quantity of controlled substance involved in determining



whether to impose an aggravated term under subdivision (b) of



Section 1170.















1170.74.  Upon conviction of a felony violation of Section 11377,



11378, 11379, or 11379.6 of the Health and Safety Code, for an



offense involving methamphetamine, the fact that the controlled



substance is the crystalline form of methamphetamine shall be



considered a circumstance in aggravation of the crime in imposing a



term under subdivision (b) of Section 1170.















1170.75.  Except where the court imposes additional punishment under



Section 422.75 or in a case in which the person has been convicted



of an offense subject to Section 1170.8, the fact that a person



committed a felony or attempted to commit a felony because of the



victim's race, color, religion, nationality, country of origin,



ancestry, disability, gender, or sexual orientation, or because he or



she perceived that the victim had one or more of those



characteristics, shall be considered a circumstance in aggravation of



the crime in imposing a term under subdivision (b) of Section 1170.















1170.76.  The fact that a defendant who commits or attempts to



commit a violation of Section 243.4, 245, 273.5, or 273.55, is or has



been a member of the household of a minor or of the victim of the



offense, or the defendant is a marital or blood relative of the minor



or the victim, or the defendant or the victim is the natural parent,



adoptive parent, stepparent, or foster parent of the minor, and the



offense contemporaneously occurred in the presence of, or was



witnessed by, the minor shall be considered a circumstance in



aggravation of the crime in imposing a term under subdivision (b) of



Section 1170.











1170.78.  Upon a conviction of a violation of Section 451, the fact



that the person committed the offense in retaliation against the



owner or occupant of the property or structure burned, or against one



believed by the person to be the owner or occupant of the property



or structure burned, for any eviction or other legal action taken by



the owner or occupant, or believed owner or occupant, shall be a



circumstance in aggravation of the crime in imposing a term under



subdivision (b) of Section 1170.















1170.8.  (a) The fact that a robbery or an assault with a deadly



weapon or instrument or by means of any force likely to produce great



bodily injury was committed against a person while that person was



in a church, synagogue, or building owned and occupied by a religious



educational institution, or any other place primarily used as a



place of worship where religious services are regularly conducted,



shall be considered a circumstance in aggravation of the crime in



imposing a term under subdivision (b) of Section 1170.



   (b) Upon conviction of any person for a violation of Section 451



or 453, the fact that the person intentionally burned, or intended to



burn, a church, synagogue, or building owned and occupied by a



religious educational institution, or any other place primarily used



as a place of worship where religious services are regularly



conducted, shall be considered a circumstance in aggravation of the



crime in imposing a term under subdivision (b) of Section 1170.















1170.81.  The fact that the intended victim of an attempted life



term crime was a peace officer, as described in subdivisions (a) and



(b) of Section 830.1, or Section 830.2, 830.5 or 830.6, while the



peace officer was engaged in the performance of his or her duties,



and the defendant knew or reasonably should have known that the



victim was a peace officer engaged in the performance of his or her



duties, shall be considered a circumstance in aggravation of the



crime in imposing a term under subdivision (b) of Section 1170.















1170.82.  Upon a conviction of a violation of Section 11352, 11360,



11379, or 11379.5 of the Health and Safety Code, the fact that the



person who committed the offense knew, or reasonably should have



known, that any of the following circumstances existed with regard to



the person to whom he or she unlawfully sold, furnished,



administered, or gave away a controlled substance, shall be a



circumstance in aggravation of the crime in imposing a term pursuant



to subdivision (b) of Section 1170:



   (a) The person was pregnant at the time of the selling,



furnishing, administering, or giving away of the controlled



substance.



   (b) The person had been previously convicted of a violent felony,



as defined in subdivision (c) of Section 667.5.



   (c) The person was in psychological treatment for a mental



disorder or for substance abuse at the time of the selling,



furnishing, administering, or giving away of the controlled



substance.











1170.84.  Upon conviction of any serious felony, listed in



subdivision (c) of Section 1192.7, it shall be considered a



circumstance in aggravation of the crime in imposing a term under



subdivision (b) of Section 1170 if, during the course of the serious



felony, the person engaged in the tying, binding, or confining of any



victim.















1170.85.  (a) Upon conviction of any felony assault or battery



offense, it shall be considered a circumstance in aggravation of the



crime in imposing a term under subdivision (b) of Section 1170 if the



offense was committed to prevent or dissuade a person who is or may



become a witness from attending upon or testifying at any trial,



proceeding, or inquiry authorized by law, or if the offense was



committed because the person provided assistance or information to a



law enforcement officer, or to a public prosecutor in a criminal or



juvenile court proceeding.



   (b) Upon conviction of any felony it shall be considered a



circumstance in aggravation in imposing a term under subdivision (b)



of Section 1170 if the victim of an offense is particularly



vulnerable, or unable to defend himself or herself, due to age or



significant disability.















1170.86.  Upon conviction of a felony violation of Section 220, 261,



261.5, 264.1, 266j, or 269, the fact that the felony was committed



within a safe school zone, as defined in subdivision (c) of Section



626, against a victim who was a pupil currently attending school,



shall be considered a circumstance in aggravation in imposing a term



under subdivision (b) of Section 1170.















1170.89.  Where there is an applicable triad for an enhancement



related to the possession of, being armed with, use of, or furnishing



or supplying a firearm, set forth in Section 12021.5, 12022,



12022.2, 12022.3, 12022.4, 12022.5, 12022.55, or 12280, the fact that



a person knew or had reason to believe that a firearm was stolen



shall constitute a circumstance in aggravation of the enhancement



justifying imposition of the upper term on that enhancement.















1170.9.  In the case of any person convicted of a felony who would



otherwise be sentenced to state prison the court shall consider



whether the defendant was a member of the military forces of the



United States who served in combat in Vietnam and who suffers from



substance abuse or psychological problems resulting from that



service.  If the court concludes that the defendant is such a person,



the court may order the defendant committed to the custody of



federal correctional officials for incarceration for a term



equivalent to that which the defendant would have served in state



prison.  The court may make such a commitment only if the defendant



agrees to such a commitment, the court has determined that



appropriate federal programs exist, and federal law authorizes the



receipt of the defendant under such conditions.















1170.95.  (a) Notwithstanding Section 1170.1 relating to the maximum



total of subordinate terms for consecutive offenses that are not



"violent felonies," the total of the subordinate terms for



consecutive offenses that are all residential burglaries may exceed



five years.



   (b) Notwithstanding Section 1170.1 relating to the maximum total



of subordinate terms for consecutive offenses that are not "violent



felonies," the total of the subordinate terms for consecutive



offenses that are all residential robberies may exceed five years.



   (c) Notwithstanding Section 1170.1 relating to the maximum total



of subordinate terms for consecutive offenses that are not "violent



felonies," the total of the subordinate terms for consecutive



offenses that are all residential arsons may exceed five years.



   (d) When a subordinate consecutive term of imprisonment is imposed



pursuant to Sections 669 and 1170 that involves one or more



convictions for robbery where it is charged and found that in each of



those robberies that the defendant personally used a deadly or



dangerous weapon in the commission of that robbery, as provided in



subdivision (b) of Section 12022, and each of those robberies is not



a violent felony, as defined in subdivision (c) of Section 667.5, the



aggregate term shall be calculated as provided in subdivision (a) of



Section 1170.1, except that the subordinate term for each



subordinate robbery conviction shall consist of one-third of the



middle term of imprisonment and one-third of the enhancement provided



in subdivision (b) of Section 12022.  Notwithstanding Section



1170.1, the total of the subordinate terms imposed under this



subdivision may exceed five years.



   (e) As used in this section, "residential burglary" means burglary



of an inhabited dwelling house, an inhabited floating home as



defined in subdivision (d) of Section 18075.55 of the Health and



Safety Code, an inhabited trailer coach as defined in Section 635 of



the Vehicle Code, or the inhabited portion of any other building.



   (f) As used in this section, "residential robbery" means a robbery



that is perpetrated in an inhabited dwelling house, an inhabited



floating home as defined in subdivision (d) of Section 18075.55 of



the Health and Safety Code, an inhabited trailer coach as defined in



Section 635 of the Vehicle Code, or the inhabited portion of any



other building.



   (g) As used in this section, "residential arson" means arson



committed in violation of subdivision (b) of Section 451 where it is



charged and proved that the defendant intentionally set fire to or



burned or caused the burning of a distinct inhabited structure or a



distinct inhabited property in the commission of that offense.