190.05
. (a) The penalty for a defendant found guilty of murder in
the second degree, who has served a prior prison term for murder in
the first or second degree, shall be confinement in the state prison
for a term of life without the possibility of parole or confinement
in the state prison for a term of 15 years to life. For purposes of
this section, a prior prison term for murder of the first or second
degree is that time period in which a defendant has spent actually
incarcerated for his or her offense prior to release on parole.
(b) A prior prison term for murder for purposes of this section
includes either of the following:
(1) A prison term served in any state prison or federal penal
institution, including confinement in a hospital or other institution
or facility credited as service of prison time in the jurisdiction
of confinement, as punishment for the commission of an offense which
includes all of the elements of murder in the first or second degree
as defined under California law.
(2) Incarceration at a facility operated by the Youth Authority
for murder of the first or second degree when the person was subject
to the custody, control, and discipline of the Director of
Corrections.
(c) The fact of a prior prison term for murder in the first or
second degree shall be alleged 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 trial by the
court sitting without a jury.
(d) In case of a reasonable doubt as to whether the defendant
served a prior prison term for murder in the first or second degree,
the defendant is entitled to a finding that the allegation is not
true.
(e) If the trier of fact finds that the defendant has served a
prior prison term for murder in the first or second degree, there
shall be a separate penalty hearing before the same trier of fact,
except as provided in subdivision (f).
(f) If the 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 or nolo contendere, 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 the 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 the state prison for a term of 15 years
to life.
(g) 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 at 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.
(h) In the proceeding on the question of penalty, evidence may be
presented by both the people and the defendant as to any matter
relevant to aggravation, mitigation, and sentence, including, but not
limited to, the nature and circumstances of the present offense, any
prior felony conviction or convictions whether or not such
conviction or convictions involved a crime of violence, the presence
or absence of other criminal activity by the defendant which involved
the use or attempted use of force or violence or which involved the
express or implied threat to use force or violence, and the defendant'
s character, background, history, mental condition, and physical
condition.
However, no evidence shall be admitted regarding other criminal
activity by the defendant which did not involve the use or attempted
use of force or violence or which did not involve the express or
implied threat to use force or violence. As used in this section,
criminal activity does not require a conviction.
However, in no event shall evidence of prior criminal activity be
admitted for an offense for which the defendant was prosecuted and
acquitted. The restriction on the use of this evidence is intended to
apply only to proceedings pursuant to this section and is not
intended to affect statutory or decisional law allowing such evidence
to be used in any other proceedings.
Except for evidence in proof of the offense or the prior prison
term for murder of the first or second degree which subjects a
defendant to the punishment of life without the possibility of
parole, no evidence may be presented by the prosecution in
aggravation unless notice of the evidence to be introduced has been
given to the defendant within a reasonable period of time as
determined by the court, prior to trial. Evidence may be introduced
without such notice in rebuttal to evidence introduced by the
defendant in mitigation.
In determining the penalty, the trier of fact shall take into
account any of the following factors if relevant:
(1) The circumstances of the crime of which the defendant was
convicted in the present proceeding and the existence of the prior
prison term for murder.
(2) The presence or absence of criminal activity by the defendant
which involved the use or attempted use of force or violence or the
express or implied threat to use force or violence.
(3) The presence or absence of any prior felony conviction.
(4) Whether or not the offense was committed while the defendant
was under the influence of extreme mental or emotional disturbance.
(5) Whether or not the victim was a participant in the defendant's
homicidal conduct or consented to the homicidal act.
(6) Whether or not the offense was committed under circumstances
which the defendant reasonably believed to be a moral justification
or extenuation for his or her conduct.
(7) Whether or not the defendant acted under extreme duress or
under the substantial domination of another person.
(8) Whether or not at the time of the offense the ability of the
defendant to appreciate the criminality of his or her conduct or to
conform his or her conduct to the requirements of law was impaired as
a result of mental disease or defect, or the effects of
intoxication.
(9) The age of the defendant at the time of the crime.
(10) Whether or not the defendant was an accomplice to the offense
and his or her participation in the commission of the offense was
relatively minor.
(11) Any other circumstance which extenuates the gravity of the
crime even though it is not a legal excuse for the crime.
After having heard and received all of the evidence, and after
having heard and considered the arguments of counsel, the trier of
fact shall consider, take into account, and be guided by the
aggravating and mitigating circumstances referred to in this section,
and shall impose a sentence of life without the possibility of
parole if the trier of fact concludes that the aggravating
circumstances outweigh the mitigating circumstances. If the trier of
fact determines that the mitigating circumstances outweigh the
aggravating circumstances, the trier of fact shall impose a sentence
of confinement in the state prison for 15 years to life.
(i) Nothing in this section shall be construed to prohibit the
charging of finding of any special circumstance pursuant to Sections
190.1, 190.2, 190.3, 190.4, and 190.5.