1170.12
. Aggregate and consecutive terms for multiple convictions;
Prior conviction as prior felony; Commitment and other enhancements
or punishment.
(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 serious and/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 and/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 provision of law and for the
purposes of this section, a prior serious and/or violent 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 serious and/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. None of the following
dispositions shall affect the determination that a prior serious
and/or violent conviction is a serious and/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 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 prior conviction in another jurisdiction for an offense
that, if committed in California, is punishable by imprisonment in
the state prison shall constitute a prior conviction of a particular
serious and/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 shall constitute a prior serious
and/or violent felony conviction for the 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 serious and/or violent
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 one or more prior serious and/or
violent felony convictions:
(1) If a defendant has one prior serious and/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 and/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:
(i) three times the term otherwise provided as punishment for each
current felony conviction subsequent to the two or more prior
serious and/or violent 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.
(C) If a defendant has two or more prior serious and/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) of this section, the defendant shall be sentenced
pursuant to paragraph (1) of subdivision (c) of this section, 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 Section 262, 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 288a, 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) of this section, for any of the following serious
and/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 who is more than 10 years younger than he or she as defined by
Section 288a, sodomy with another person who is under 14 years of age
and more than 10 years younger than he or she as defined by Section
286 or sexual penetration with another person who is under 14 years
of age, and who is more than 10 years younger than he or she, 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 machine gun 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 and/or violent felony offense punishable in
California by life imprisonment or death.
(d) (1) Notwithstanding any other provision of law, this section
shall be applied in every case in which a defendant has one or more
prior serious and/or violent felony convictions as defined in this
section. The prosecuting attorney shall plead and prove each prior
serious and/or violent felony conviction except as provided in
paragraph (2).
(2) The prosecuting attorney may move to dismiss or strike a prior
serious and/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 and/or violent
conviction. If upon the satisfaction of the court that there is
insufficient evidence to prove the prior serious and/or violent
felony conviction, the court may dismiss or strike the allegation.
Nothing in this section shall be read to alter a court's authority
under Section 1385.
(e) Prior serious and/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
and/or violent felony convictions and shall not enter into any
agreement to strike or seek the dismissal of any prior serious and/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 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.
(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.