"u.s.a"california penal code

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2045. The Director of Corrections with the approval of the Board of
Corrections, is authorized to establish a State prison for the
confinement of males under the custody of the Director of
Corrections.



2045.1. The prison authorized to be established by Section 2045
shall be a medium security type institution. Its primary purpose
shall be to provide custody, care, industrial, vocational, and other
training to persons confined therein. However, the Director of
Corrections may designate a portion or all of the prison to serve the
same purposes and to have the same security standards as the
institution provided for by Article 4 (commencing at Section 2035) of
Chapter 1 of Title 1 of Part 3.



2045.4. The Governor, upon recommendation of the Director of
Corrections, in accordance with Section 6050, shall appoint a warden
for the California Training Facility. The director shall appoint,
subject to civil service, those other officers and employees as may
be necessary.
The Director of Corrections may remove a warden at his or her own
discretion at any time.


2045.5. The Director of Corrections shall construct and equip in
accordance with law, suitable buildings, structures and facilities
for said institution.


2045.6. The provisions of Part 3 (commencing with Section 2000)
apply to the institution and to the persons confined therein insofar
as those provisions may be applicable.
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2045.10. The Director of Corrections is authorized to construct and
establish a state prison for the confinement of males under the
custody of the Director of Corrections.



2045.11. The facility authorized by Section 2045.10 shall be a
combination 1,000-bed Level III and 1,000-bed Level IV prison
together with a 200-bed Level I support services facility on the
existing grounds of the Correctional Training Facility in Monterey
County. The provisions of Division 13 (commencing with Section
21000) of the Public Resources Code that require consideration of
alternatives for a proposed project shall not apply to the project
authorized by Section 2045.10.

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2046. The Director of Corrections is authorized to establish a
state prison for the confinement of males under the custody of the
Director of Corrections. It shall be a medium security institution
and shall be known as the California Men's Colony.




2046.1. The prison authorized to be established by Section 2046
shall be a medium security type institution. Its primary purpose
shall be to provide custody, care, industrial, vocational, and other
training to persons confined therein.


2046.2. Any person under the custody of the Director of Corrections
may be transferred to the said prison in accordance with law.



2046.4. A warden for the said prison shall be appointed pursuant to
Section 6050, and the Director of Corrections shall apoint, subject
to civil service, such other officials and employees as may be
necessary therefor, and shall fix their compensation.




2046.5. The Director of Corrections shall construct and equip in
accordance with law, suitable buildings, structures, and facilities
for the said prison.


2046.6. The provisions of this part shall apply to the prison and
to the persons confined therein insofar as those provisions may be
applicable.

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[align=left]1053. If after the commencement of the trial of a criminal action
or proceeding in any court the judge or justice presiding at the
trial shall die, become ill, or for any other reason be unable to
proceed with the trial, any other judge or justice of the court in
which the trial is proceeding may proceed with and finish the trial;
or if there be no other judge or justice of that court available,
then the clerk, sheriff, or marshal shall adjourn the court and
notify the Chairman of the Judicial Council of the facts, and shall
continue the case from day to day until the time that the chairman
shall designate and assign a judge or justice of some other court,
and the judge or justice shall arrive, to proceed with and complete
the trial, or until such time as by stipulation in writing between
the prosecuting attorney and the attorney for the defendant, filed
with the court, a judge or justice shall be agreed upon by them, and
the judge or justice shall arrive to complete the trial. The judge
or justice authorized by this section to proceed with and complete
the trial shall have the same power, authority, and jurisdiction as
if the trial had been commenced before that judge or justice.[/align]

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1054. This chapter shall be interpreted to give effect to all of
the following purposes:
(a) To promote the ascertainment of truth in trials by requiring
timely pretrial discovery.
(b) To save court time by requiring that discovery be conducted
informally between and among the parties before judicial enforcement
is requested.
(c) To save court time in trial and avoid the necessity for
frequent interruptions and postponements.
(d) To protect victims and witnesses from danger, harassment, and
undue delay of the proceedings.
(e) To provide that no discovery shall occur in criminal cases
except as provided by this chapter, other express statutory
provisions, or as mandated by the Constitution of the United States.




1054.1. The prosecuting attorney shall disclose to the defendant or
his or her attorney all of the following materials and information,
if it is in the possession of the prosecuting attorney or if the
prosecuting attorney knows it to be in the possession of the
investigating agencies:
(a) The names and addresses of persons the prosecutor intends to
call as witnesses at trial.
(b) Statements of all defendants.
(c) All relevant real evidence seized or obtained as a part of the
investigation of the offenses charged.
(d) The existence of a felony conviction of any material witness
whose credibility is likely to be critical to the outcome of the
trial.
(e) Any exculpatory evidence.
(f) Relevant written or recorded statements of witnesses or
reports of the statements of witnesses whom the prosecutor intends to
[align=left]call at the trial, including any reports or statements of experts
made in conjunction with the case, including the results of physical
or mental examinations, scientific tests, experiments, or comparisons
which the prosecutor intends to offer in evidence at the trial.



1054.2. (a) (1) Except as provided in paragraph (2), no attorney
may disclose or permit to be disclosed to a defendant, members of the
defendant's family, or anyone else, the address or telephone number
of a victim or witness whose name is disclosed to the attorney
pursuant to subdivision (a) of Section 1054.1, unless specifically
permitted to do so by the court after a hearing and a showing of good
cause.
(2) Notwithstanding paragraph (1), an attorney may disclose or
permit to be disclosed the address or telephone number of a victim or
witness to persons employed by the attorney or to persons appointed
by the court to assist in the preparation of a defendant's case if
that disclosure is required for that preparation. Persons provided
this information by an attorney shall be informed by the attorney
that further dissemination of the information, except as provided by
this section, is prohibited.
(3) Willful violation of this subdivision by an attorney, persons
employed by the attorney, or persons appointed by the court is a
misdemeanor.
(b) If the defendant is acting as his or her own attorney, the
court shall endeavor to protect the address and telephone number of a
victim or witness by providing for contact only through a private
investigator licensed by the Department of Consumer Affairs and
appointed by the court or by imposing other reasonable restrictions,
absent a showing of good cause as determined by the court.



1054.3. The defendant and his or her attorney shall disclose to the
prosecuting attorney:
(a) The names and addresses of persons, other than the defendant,
he or she intends to call as witnesses at trial, together with any
relevant written or recorded statements of those persons, or reports
of the statements of those persons, incuding any reports or
statements of experts made in connection with the case, and including
the results of physical or mental examinations, scientific tests,
experiments, or comparisons which the defendant intends to offer in
evidence at the trial.
(b) Any real evidence which the defendant intends to offer in
evidence at the trial.



1054.4. Nothing in this chapter shall be construed as limiting any
law enforcement or prosecuting agency from obtaining nontestimonial
evidence to the extent permitted by law on the effective date of this
section.


1054.5. (a) No order requiring discovery shall be made in criminal
cases except as provided in this chapter. This chapter shall be the
only means by which the defendant may compel the disclosure or
production of information from prosecuting attorneys, law enforcement
agencies which investigated or prepared the case against the
defendant, or any other persons or agencies which the prosecuting
attorney or investigating agency may have employed to assist them in
performing their duties.
(b) Before a party may seek court enforcement of any of the
disclosures required by this chapter, the party shall make an
informal request of opposing counsel for the desired materials and
information. If within 15 days the opposing counsel fails to provide
the materials and information requested, the party may seek a court
order. Upon a showing that a party has not complied with Section
1054.1 or 1054.3 and upon a showing that the moving party complied
with the informal discovery procedure provided in this subdivision, a
court may make any order necessary to enforce the provisions of this
chapter, including, but not limited to, immediate disclosure,
contempt proceedings, delaying or prohibiting the testimony of a
witness or the presentation of real evidence, continuance of the
matter, or any other lawful order. Further, the court may advise the
jury of any failure or refusal to disclose and of any untimely
disclosure.
(c) The court may prohibit the testimony of a witness pursuant to
subdivision (b) only if all other sanctions have been exhausted. The
court shall not dismiss a charge pursuant to subdivision (b) unless
required to do so by the Constitution of the United States.




1054.6. Neither the defendant nor the prosecuting attorney is
required to disclose any materials or information which are work
product as defined in subdivision (a) of Section 2018.030 of the Code
of Civil Procedure, or which are privileged pursuant to an express
statutory provision, or are privileged as provided by the
Constitution of the United States.



1054.7. The disclosures required under this chapter shall be made
at least 30 days prior to the trial, unless good cause is shown why a
disclosure should be denied, restricted, or deferred. If the
material and information becomes known to, or comes into the
possession of, a party within 30 days of trial, disclosure shall be
made immediately, unless good cause is shown why a disclosure should
be denied, restricted, or deferred. "Good cause" is limited to
threats or possible danger to the safety of a victim or witness,
possible loss or destruction of evidence, or possible compromise of
other investigations by law enforcement.
Upon the request of any party, the court may permit a showing of
good cause for the denial or regulation of disclosures, or any
portion of that showing, to be made in camera. A verbatim record
shall be made of any such proceeding. If the court enters an order
granting relief following a showing in camera, the entire record of
the showing shall be sealed and preserved in the records of the
court, and shall be made available to an appellate court in the event
of an appeal or writ. In its discretion, the trial court may after
trial and conviction, unseal any previously sealed matter.



1054.8. (a) No prosecuting attorney, attorney for the defendant, or
investigator for either the prosecution or the defendant shall
interview, question, or speak to a victim or witness whose name has
been disclosed by the opposing party pursuant to Section 1054.1 or
1054.3 without first clearly identifying himself or herself,
identifying the full name of the agency by whom he or she is
employed, and identifying whether he or she represents, or has been
retained by, the prosecution or the defendant. If the interview
takes place in person, the party shall also show the victim or
witness a business card, official badge, or other form of official
identification before commencing the interview or questioning.
(b) Upon a showing that a person has failed to comply with this
section, a court may issue any order authorized by Section 1054.5.



1054.9. (a) Upon the prosecution of a postconviction writ of habeas
corpus or a motion to vacate a judgment in a case in which a
sentence of death or of life in prison without the possibility of
parole has been imposed, and on a showing that good faith efforts to
obtain discovery materials from trial counsel were made and were
unsuccessful, the court shall, except as provided in subdivision (c),
order that the defendant be provided reasonable access to any of the
materials described in subdivision (b).
(b) For purposes of this section, "discovery materials" means
materials in the possession of the prosecution and law enforcement
authorities to which the same defendant would have been entitled at
time of trial.
(c) In response to a writ or motion satisfying the conditions in
subdivision (a), court may order that the defendant be provided
access to physical evidence for the purpose of examination,
including, but not limited to, any physical evidence relating to the
investigation, arrest, and prosecution of the defendant only upon a
showing that there is good cause to believe that access to physical
evidence is reasonably necessary to the defendant's effort to obtain
relief. The procedures for obtaining access to physical evidence for
purposes of postconviction DNA testing are provided in Section 1405,
and nothing in this section shall provide an alternative means of
access to physical evidence for those purposes.
(d) The actual costs of examination or copying pursuant to this
section shall be borne or reimbursed by the defendant.



1054.10. (a) Except as provided in subdivision (b), no attorney
may disclose or permit to be disclosed to a defendant, members of the
defendant's family, or anyone else copies of child pornography
evidence, unless specifically permitted to do so by the court after a
hearing and a showing of good cause.
(b) Notwithstanding subdivision (a), an attorney may disclose or
permit to be disclosed copies of child pornography evidence to
persons employed by the attorney or to persons appointed by the court
to assist in the preparation of a defendant's case if that
disclosure is required for that preparation. Persons provided this
material by an attorney shall be informed by the attorney that
further dissemination of the material, except as provided by this
section, is prohibited.[/align]

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OF PROCEEDINGS AFTER THE COMMENCEMENT OF THE TRIAL
AND BEFORE JUDGMENT
CHALLENGING THE JURY


1065. If, either upon an exception to the challenge or a denial of
the facts, the challenge is allowed, the Court must discharge the
jury so far as the trial in question is concerned. If it is
disallowed, the Court must direct the jury to be impaneled.




(1083.) Section Ten Hundred and Eighty-three. The Court must allow
or disallow the challenge, and its decision must be entered in the
minutes of the Court.


1089. Whenever, in the opinion of a judge of a superior court about
to try a defendant against whom has been filed any indictment or
information or complaint, the trial is likely to be a protracted one,
the court may cause an entry to that effect to be made in the
minutes of the court, and thereupon, immediately after the jury is
impaneled and sworn, the court may direct the calling of one or more
additional jurors, in its discretion, to be known as "alternate
jurors."
The alternate jurors must be drawn from the same source, and in
the same manner, and have the same qualifications as the jurors
already sworn, and be subject to the same examination and challenges,
provided that the prosecution and the defendant shall each be
entitled to as many peremptory challenges to the alternate jurors as
there are alternate jurors called. When two or more defendants are
tried jointly each defendant shall be entitled to as many peremptory
challenges to the alternate jurors as there are alternate jurors
called. The prosecution shall be entitled to additional peremptory
challenges equal to the number of all the additional separate
challenges allowed the defendant or defendants to the alternate
jurors.
The alternate jurors shall be seated so as to have equal power and
facilities for seeing and hearing the proceedings in the case, and
shall take the same oath as the jurors already selected, and must
attend at all times upon the trial of the cause in company with the
other jurors, and for a failure so to do are liable to be punished
for contempt.
They shall obey the orders of and be bound by the admonition of
the court, upon each adjournment of the court; but if the regular
jurors are ordered to be kept in the custody of the sheriff or
marshal during the trial of the cause, the alternate jurors shall
also be kept in confinement with the other jurors; and upon final
submission of the case to the jury the alternate jurors shall be kept
in the custody of the sheriff or marshal and shall not be discharged
until the original jurors are discharged, except as hereinafter
provided.
If at any time, whether before or after the final submission of
the case to the jury, a juror dies or becomes ill, or upon other good
cause shown to the court is found to be unable to perform his or her
duty, or if a juror requests a discharge and good cause appears
therefor, the court may order the juror to be discharged and draw the
name of an alternate, who shall then take a place in the jury box,
and be subject to the same rules and regulations as though the
alternate juror had been selected as one of the original jurors.
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1093. The jury having been impaneled and sworn, unless waived, the
trial shall proceed in the following order, unless otherwise directed
by the court:
(a) If the accusatory pleading be for a felony, the clerk shall
read it, and state the plea of the defendant to the jury, and in
cases where it charges a previous conviction, and the defendant has
confessed the same, the clerk in reading it shall omit therefrom all
that relates to such previous conviction. In all other cases this
formality may be dispensed with.
(b) The district attorney, or other counsel for the people, may
make an opening statement in support of the charge. Whether or not
the district attorney, or other counsel for the people, makes an
opening statement, the defendant or his or her counsel may then make
an opening statement, or may reserve the making of an opening
statement until after introduction of the evidence in support of the
charge.
(c) The district attorney, or other counsel for the people shall
then offer the evidence in support of the charge. The defendant or
his or her counsel may then offer his or her evidence in support of
the defense.
(d) The parties may then respectively offer rebutting testimony
only, unless the court, for good reason, in furtherance of justice,
permit them to offer evidence upon their original case.
(e) When the evidence is concluded, unless the case is submitted
on either side, or on both sides, without argument, the district
attorney, or other counsel for the people, and counsel for the
defendant, may argue the case to the court and jury; the district
attorney, or other counsel for the people, opening the argument and
having the right to close.
(f) The judge may then charge the jury, and shall do so on any
points of law pertinent to the issue, if requested by either party;
and the judge may state the testimony, and he or she may make such
comment on the evidence and the testimony and credibility of any
witness as in his or her opinion is necessary for the proper
determination of the case and he or she may declare the law. At the
beginning of the trial or from time to time during the trial, and
without any request from either party, the trial judge may give the
jury such instructions on the law applicable to the case as the judge
may deem necessary for their guidance on hearing the case. Upon the
jury retiring for deliberation, the court shall advise the jury of
the availability of a written copy of the jury instructions. The
court may, at its discretion, provide the jury with a copy of the
written instructions given. However, if the jury requests the court
to supply a copy of the written instructions, the court shall supply
the jury with a copy.



1093.5. In any criminal case which is being tried before the court
with a jury, all requests for instructions on points of law must be
made to the court and all proposed instructions must be delivered to
the court before commencement of argument. Before the commencement
of the argument, the court, on request of counsel, must: (1) decide
whether to give, refuse, or modify the proposed instructions; (2)
decide which instructions shall be given in addition to those
proposed, if any; and (3) advise counsel of all instructions to be
given. However, if, during the argument, issues are raised which
have not been covered by instructions given or refused, the court
may, on request of counsel, give additional instructions on the
subject matter thereof.



1094. When the state of the pleadings requires it, or in any other
case, for good reasons, and in the sound discretion of the Court, the
order prescribed in the last section may be departed from.



1095. If the offense charged is punishable with death, two counsel
on each side may argue the cause. In any other case the court may,
in its discretion, restrict the argument to one counsel on each side.



1096. A defendant in a criminal action is presumed to be innocent
until the contrary is proved, and in case of a reasonable doubt
whether his or her guilt is satisfactorily shown, he or she is
entitled to an acquittal, but the effect of this presumption is only
to place upon the state the burden of proving him or her guilty
beyond a reasonable doubt. Reasonable doubt is defined as follows:
"It is not a mere possible doubt; because everything relating to
human affairs is open to some possible or imaginary doubt. It is
that state of the case, which, after the entire comparison and
consideration of all the evidence, leaves the minds of jurors in that
condition that they cannot say they feel an abiding conviction of
the truth of the charge."



1096a. In charging a jury, the court may read to the jury Section
1096, and no further instruction on the subject of the presumption of
innocence or defining reasonable doubt need be given.



1097. When it appears that the defendant has committed a public
offense, or attempted to commit a public offense, and there is
reasonable ground of doubt in which of two or more degrees of the
crime or attempted crime he is guilty, he can be convicted of the
lowest of such degrees only.



1098. When two or more defendants are jointly charged with any
public offense, whether felony or misdemeanor, they must be tried
jointly, unless the court order separate trials. In ordering
separate trials, the court in its discretion may order a separate
trial as to one or more defendants, and a joint trial as to the
others, or may order any number of the defendants to be tried at one
trial, and any number of the others at different trials, or may order
a separate trial for each defendant; provided, that where two or
more persons can be jointly tried, the fact that separate accusatory
pleadings were filed shall not prevent their joint trial.




1099. When two or more defendants are included in the same
accusatory pleading, the court may, at any time before the defendants
have gone into their defense, on the application of the prosecuting
attorney, direct any defendant to be discharged, that he may be a
witness for the people.



1100. When two or more defendants are included in the same
accusatory pleading, and the court is of opinion that in regard to a
particular defendant there is not sufficient evidence to put him on
his defense, it must order him to be discharged before the evidence
is closed, that he may be a witness for his codefendant.




1101. The order mentioned in Sections 1099 and 1100 is an acquittal
of the defendant discharged, and is a bar to another prosecution for
the same offense.


1102. The rules of evidence in civil actions are applicable also to
criminal actions, except as otherwise provided in this Code.



1102.6. The right of a victim of crime to be present during any
criminal proceeding shall be secured as follows:
(a) Notwithstanding any other law, and except as specified in
subdivision (d), a victim shall be entitled to be present and seated
at all criminal proceedings where the defendant, the prosecuting
attorney, and the general public are entitled to be present.
(b) A victim may be excluded from a criminal proceeding only if
each of the following criteria are met:
(1) Any movant, including the defendant, who seeks to exclude the
victim from any criminal proceeding demonstrates that there is a
substantial probability that overriding interests will be prejudiced
by the presence of the victim. "Overriding interests" may include,
but are not limited to, the following:
(A) The defendant's right to a fair trial.
(B) The government's interest in inhibiting the disclosure of
sensitive information.
(C) The protection of witnesses from harassment and physical harm.

(D) The court's interest in maintaining order.
(E) The protection of ***ual offense victims from the trauma and
embarrassment of testifying.
(F) Safeguarding the physical and psychological well-being of a
minor.
(G) The preservation of trade secrets.
(2) The court considers reasonable alternatives to exclusion of
the victim from the criminal proceeding.
(3) The exclusion of the victim from any criminal proceeding, or
any limitation on his or her presence at any criminal proceeding, is
narrowly tailored to serve the overriding interests identified by the
movant.
(4) Following a hearing at which any victim who is to be excluded
from a criminal proceeding is afforded an opportunity to be heard,
the court makes specific factual findings that support the exclusion
of the victim from, or any limitation on his or her presence at, the
criminal proceeding.
(c) As used in this section, "victim" means (1) the alleged victim
of the offense and one person of his or her choosing or however many
more the court may allow under the particular circumstances
surrounding the proceeding, (2) in the event that the victim is
unable to attend the proceeding, two persons designated by the victim
or however many more the court may allow under the particular
circumstances surrounding the proceeding, or (3) if the victim is no
longer living, two members of the victim's immediate family or
however many more the court may allow under the particular
circumstances surrounding the proceeding.
(d) Nothing in this section shall prevent a court from excluding a
victim from a criminal proceeding, pursuant to Section 777 of the
Evidence Code, when the victim is subpoenaed as a witness. An order
of exclusion shall be consistent with the objectives of paragraphs
(1) to (4), inclusive, of subdivision (b) to allow the victim to be
present, whenever possible, at all proceedings.



1108. Upon a trial for procuring or attempting to procure an
abortion, or aiding or assisting therein, or for inveigling,
enticing, or taking away an unmarried female of previous chaste
character, under the age of eighteen years, for the purpose of
prostitution, or aiding or assisting therein, the defendant cannot be
convicted upon the testimony of the woman upon or with whom the
offense was committed, unless she is corroborated by other evidence.



1111. A conviction can not be had upon the testimony of an
accomplice unless it be corroborated by such other evidence as shall
tend to connect the defendant with the commission of the offense; and
the corroboration is not sufficient if it merely shows the
commission of the offense or the circumstances thereof.
An accomplice is hereby defined as one who is liable to
prosecution for the identical offense charged against the defendant
on trial in the cause in which the testimony of the accomplice is
given.



1112. Notwithstanding the provisions of subdivision (d) of Section
28 of Article I of the California Constitution, the trial court shall
not order any prosecuting witness, complaining witness, or any other
witness, or victim in any ***ual assault prosecution to submit to a
psychiatric or psychological examination for the purpose of assessing
his or her credibility.



1113. The Court may direct the jury to be discharged where it
appears that it has not jurisdiction of the offense, or that the
facts charged do not constitute an offense punishable by law.



1114. If the jury be discharged because the Court has not
jurisdiction of the offense charged, and it appear that it was
committed out of the jurisdiction of this State, the defendant must
be discharged.



1115. If the offense was committed within the exclusive
jurisdiction of another county of this State, the Court must direct
the defendant to be committed for such time as it deems reasonable,
to await a warrant from the proper county for his arrest; or if the
offense is a misdemeanor only, it may admit him to bail in an
undertaking, with sufficient sureties, that he will, within such time
as the Court may appoint, render himself amenable to a warrant for
his arrest from the proper county; and, if not sooner arrested
thereon, will attend at the office of the Sheriff of the county where
the trial was had, at a certain time particularly specified in the
undertaking, to surrender himself upon the warrant, if issued, or
that his bail will forfeit such sum as the Court may fix, to be
mentioned in the undertaking; and the Clerk must forthwith transmit a
certified copy of the indictment or information, and of all the
papers filed in the action, to the District Attorney of the proper
county, the expense of which transmission is chargeable to that
county.



1116. If the defendant is not arrested on a warrant from the proper
county, as provided in section 1115, he must be discharged from
custody, or his bail in the action is exonerated, or money deposited
instead of bail must be refunded to him or to the person or persons
found by the court to have deposited said money on behalf of said
defendant, as the case may be, and the sureties in the undertaking,
as mentioned in that section, must be discharged. If he is arrested,
the same proceedings must be had thereon as upon the arrest of a
defendant in another county on a warrant of arrest issued by a
magistrate.


1117. If the jury is discharged because the facts as charged do not
constitute an offense punishable by law, the court must order that
the defendant, if in custody, be discharged; or if admitted to bail,
that his bail be exonerated; or, if he has deposited money or if
money has been deposited by another or others instead of bail for his
appearance, that the money be refunded to him or to the person or
persons found by the court to have deposited said money on behalf of
said defendant, unless in its opinion a new indictment or information
can be framed upon which the defendant can be legally convicted, in
which case it may direct the district attorney to file a new
information, or (if the defendant has not been committed by a
magistrate) direct that the case be submitted to the same or another
grand jury; and the same proceedings must be had thereon as are
prescribed in section 998; provided, that after such order or
submission the defendant may be examined before a magistrate, and
discharged or committed by him as in other cases.




1118. In a case tried by the court without a jury, a jury having
been waived, the court on motion of the defendant or on its own
motion shall order the entry of a judgment of acquittal of one or
more of the offenses charged in the accusatory pleading after the
evidence of the prosecution has been closed if the court, upon
weighing the evidence then before it, finds the defendant not guilty
of such offense or offenses. If such a motion for judgment of
acquittal at the close of the evidence offered by the prosecution is
not granted, the defendant may offer evidence without first having
reserved that right.


1118.1. In a case tried before a jury, the court on motion of the
defendant or on its own motion, at the close of the evidence on
either side and before the case is submitted to the jury for
decision, shall order the entry of a judgment of acquittal of one or
more of the offenses charged in the accusatory pleading if the
evidence then before the court is insufficient to sustain a
conviction of such offense or offenses on appeal. If such a motion
for judgment of acquittal at the close of the evidence offered by the
prosecution is not granted, the defendant may offer evidence without
first having reserved that right.



1118.2. A judgment of acquittal entered pursuant to the provisions
of Section 1118 or 1118.1 shall not be appealable and is a bar to any
other prosecution for the same offense.



1119. When, in the opinion of the court, it is proper that the jury
should view the place in which the offense is charged to have been
committed, or in which any other material fact occurred, or any
personal property which has been referred to in the evidence and
cannot conveniently be brought into the courtroom, it may order the
jury to be conducted in a body, in the custody of the sheriff or
marshal, as the case may be, to the place, or to the property, which
must be shown to them by a person appointed by the court for that
purpose; and the officer must be sworn to suffer no person to speak
or communicate with the jury, nor to do so himself or herself, on any
subject connected with the trial, and to return them into court
without unnecessary delay, or at a specified time.



1120. If a juror has any personal knowledge respecting a fact in
controversy in a cause, he must declare the same in open court during
the trial. If, during the retirement of the jury, a juror declare a
fact which could be evidence in the cause, as of his own knowledge,
the jury must return into court. In either of these cases, the juror
making the statement must be sworn as a witness and examined in the
presence of the parties in order that the court may determine whether
good cause exists for his discharge as a juror.



1121. The jurors sworn to try an action may, in the discretion of
the court, be permitted to separate or be kept in charge of a proper
officer. Where the jurors are permitted to separate, the court shall
properly admonish them. Where the jurors are kept in charge of a
proper officer, the officer must be sworn to keep the jurors together
until the next meeting of the court, to suffer no person to speak to
them or communicate with them, nor to do so himself, on any subject
connected with the trial, and to return them into court at the next
meeting thereof.



1122. (a) After the jury has been sworn and before the people's
opening address, the court shall instruct the jury generally
concerning its basic functions, duties, and conduct. The
instructions shall include, among other matters, admonitions that the
jurors shall not converse among themselves, or with anyone else, on
any subject connected with the trial; that they shall not read or
listen to any accounts or discussions of the case reported by
newspapers or other news media; that they shall not visit or view the
premises or place where the offense or offenses charged were
allegedly committed or any other premises or place involved in the
case; that prior to, and within 90 days of, discharge, they shall not
request, accept, agree to accept, or discuss with any person
receiving or accepting, any payment or benefit in consideration for
supplying any information concerning the trial; and that they shall
promptly report to the court any incident within their knowledge
involving an attempt by any person to improperly influence any member
of the jury.
(b) The jury shall also, at each adjournment of the court before
the submission of the cause to the jury, whether permitted to
separate or kept in charge of officers, be admonished by the court
that it is their duty not to converse among themselves, or with
anyone else, on any subject connected with the trial, or to form or
express any opinion thereon until the cause is finally submitted to
them.



1122.5. (a) The court, in its discretion, may, at each adjournment
of the court before the submission of the cause to the jury, admonish
the jury, whether permitted to be separate or kept in charge of
officers, that, on pain of contempt of court, no juror shall, prior
to discharge, accept, agree to accept, or benefit, directly or
indirectly, from any payment or other consideration for supplying any
information concerning the trial.
(b) In enacting this section, the Legislature recognizes that the
appearance of justice, and justice itself, may be undermined by any
juror who, prior to discharge, accepts, agrees to accept, or benefits
from valuable consideration for providing information concerning a
criminal trial.



1124. The Court must decide all questions of law which arise in the
course of a trial.



1126. In a trial for any offense , questions of law are to be
decided by the court, and questions of fact by the jury. Although
the jury has the power to find a general verdict, which includes
questions of law as well as of fact, they are bound, nevertheless, to
receive as law what is laid down as such by the court.




1127. All instructions given shall be in writing, unless there is a
phonographic reporter present and he takes them down, in which case
they may be given orally; provided however, that in all misdemeanor
cases oral instructions may be given pursuant to stipulation of the
prosecuting attorney and counsel for the defendant. In charging the
jury the court may instruct the jury regarding the law applicable to
the facts of the case, and may make such comment on the evidence and
the testimony and credibility of any witness as in its opinion is
necessary for the proper determination of the case and in any
criminal case, whether the defendant testifies or not, his failure to
explain or to deny by his testimony any evidence or facts in the
case against him may be commented upon by the court. The court shall
inform the jury in all cases that the jurors are the exclusive
judges of all questions of fact submitted to them and of the
credibility of the witnesses. Either party may present to the court
any written charge on the law, but not with respect to matters of
fact, and request that it be given. If the court thinks it correct
and pertinent, it must be given; if not, it must be refused. Upon
each charge presented and given or refused, the court must endorse
and sign its decision and a statement showing which party requested
it. If part be given and part refused, the court must distinguish,
showing by the endorsement what part of the charge was given and what
part refused.


1127a. (a) As used in this section, an "in-custody informant" means
a person, other than a codefendant, percipient witness, accomplice,
or coconspirator whose testimony is based upon statements made by the
defendant while both the defendant and the informant are held within
a correctional institution.
(b) In any criminal trial or proceeding in which an in-custody
informant testifies as a witness, upon the request of a party, the
court shall instruct the jury as follows:
"The testimony of an in-custody informant should be viewed with
caution and close scrutiny. In evaluating such testimony, you should
consider the extent to which it may have been influenced by the
receipt of, or expectation of, any benefits from the party calling
that witness. This does not mean that you may arbitrarily disregard
such testimony, but you should give it the weight to which you find
it to be entitled in the light of all the evidence in the case."
(c) When the prosecution calls an in-custody informant as a
witness in any criminal trial, contemporaneous with the calling of
that witness, the prosecution shall file with the court a written
statement setting out any and all consideration promised to, or
received by, the in-custody informant.
The statement filed with the court shall not expand or limit the
defendant's right to discover information that is otherwise provided
by law. The statement shall be provided to the defendant or the
defendant's attorney prior to trial and the information contained in
the statement shall be subject to rules of evidence.
(d) For purposes of subdivision (c), "consideration" means any
plea bargain, bail consideration, reduction or modification of
sentence, or any other leniency, benefit, immunity, financial
assistance, reward, or amelioration of current or future conditions
of incarceration in return for, or in connection with, the informant'
s testimony in the criminal proceeding in which the prosecutor
intends to call him or her as a witness.



1127b. When, in any criminal trial or proceeding, the opinion of
any expert witness is received in evidence, the court shall instruct
the jury substantially as follows:
Duly qualified experts may give their opinions on questions in
controversy at a trial. To assist the jury in deciding such
questions, the jury may consider the opinion with the reasons stated
therefor, if any, by the expert who gives the opinion. The jury is
not bound to accept the opinion of any expert as conclusive, but
should give to it the weight to which they shall find it to be
entitled. The jury may, however, disregard any such opinion, if it
shall be found by them to be unreasonable.
No further instruction on the subject of opinion evidence need be
given.



1127c. In any criminal trial or proceeding where evidence of flight
of a defendant is relied upon as tending to show guilt, the court
shall instruct the jury substantially as follows:
The flight of a person immediately after the commission of a
crime, or after he is accused of a crime that has been committed, is
not sufficient in itself to establish his guilt, but is a fact which,
if proved, the jury may consider in deciding his guilt or innocence.
The weight to which such circumstance is entitled is a matter for
the jury to determine.
No further instruction on the subject of flight need be given.



1127d. (a) In any criminal prosecution for the crime of rape, or
for violation of Section 261.5, or for an attempt to commit, or
assault with intent to commit, any such crime, the jury shall not be
instructed that it may be inferred that a person who has previously
consented to ***ual intercourse with persons other than the defendant
or with the defendant would be therefore more likely to consent to
***ual intercourse again. However, if evidence was received that
the victim consented to and did engage in ***ual intercourse with the
defendant on one or more occasions prior to that charged against the
defendant in this case, the jury shall be instructed that this
evidence may be considered only as it relates to the question of
whether the victim consented to the act of intercourse charged
against the defendant in the case, or whether the defendant had a
good faith reasonable belief that the victim consented to the act of
***ual intercourse. The jury shall be instructed that it shall not
consider this evidence for any other purpose.
(b) A jury shall not be instructed that the prior ***ual conduct
in and of itself of the complaining witness may be considered in
determining the credibility of the witness pursuant to Chapter 6
(commencing with Section 780) of Division 6 of the Evidence Code.



1127e. The term "unchaste character" shall not be used by any court
in any criminal case in which the defendant is charged with a
violation of Section 261, 261.5, or 262 of the Penal Code, or attempt
to commit or assault with intent to commit any crime defined in any
of these sections, in any instruction to the jury.




1127f. In any criminal trial or proceeding in which a child 10
years of age or younger testifies as a witness, upon the request of a
party, the court shall instruct the jury, as follows:
In evaluating the testimony of a child you should consider all of
the factors surrounding the child's testimony, including the age of
the child and any evidence regarding the child's level of cognitive
development. Although, because of age and level of cognitive
development, a child may perform differently as a witness from an
adult, that does not mean that a child is any more or less credible a
witness than an adult. You should not discount or distrust the
testimony of a child solely because he or she is a child.



1127g. In any criminal trial or proceeding in which a person with a
developmental disability, or cognitive, mental, or communication
impairment testifies as a witness, upon the request of a party, the
court shall instruct the jury, as follows:
In evaluating the testimony of a person with a developmental
disability, or cognitive, mental, or communication impairment, you
should consider all of the factors surrounding the person's
testimony, including their level of cognitive development. Although,
because of his or her level of cognitive development, a person with
a developmental disability, or cognitive, mental, or communication
impairment may perform differently as a witness, that does not mean
that a person with a developmental disability, or cognitive, mental,
or communication impairment is any more or less credible a witness
than another witness. You should not discount or distrust the
testimony of a person with a developmental disability, or cognitive,
mental, or communication impairment solely because he or she is a
person with a developmental disability, or cognitive, mental, or
communication impairment.



1127h. In any criminal trial or proceeding, upon the request of a
party, the court shall instruct the jury substantially as follows:
"Do not let bias, sympathy, prejudice, or public opinion influence
your decision. Bias includes bias against the victim or victims,
witnesses, or defendant based upon his or her disability, gender,
nationality, race or ethnicity, religion, gender identity, or ***ual
orientation."



1128. After hearing the charge, the jury may either decide in court
or may retire for deliberation. If they do not agree without
retiring for deliberation, an officer must be sworn to keep them
together for deliberation in some private and convenient place, and,
during such deliberation, not to permit any person to speak to or
communicate with them, nor to do so himself, unless by order of the
court, or to ask them whether they have agreed upon a verdict, and to
return them into court when they have so agreed, or when ordered by
the court. The court shall fix the time and place for deliberation.
The jurors shall not deliberate on the case except under such
circumstances. If the jurors are permitted by the court to separate,
the court shall properly admonish them. When the jury is composed
of both men and women and the jurors are not permitted by the court
to separate, in the event that it shall become necessary to retire
for the night, the women must be kept in a room or rooms separate and
apart from the men.


1129. When a defendant who has given bail appears for trial, the
Court may, in its discretion, at any time after his appearance for
trial, order him to be committed to the custody of the proper officer
of the county, to abide the judgment or further order of the court,
and he must be committed and held in custody accordingly.




1130. If the prosecuting attorney fails to attend at the trial of a
felony, the court must appoint an attorney at law to perform the
duties of the prosecuting attorney on such trial.[/align]

[هيثم الفقى]

[align=left]
1137. Upon retiring for deliberation, the jury may take with them
all papers (except depositions) which have been received as evidence
in the cause, or copies of such public records or private documents
given in evidence as ought not, in the opinion of the court, to be
taken from the person having them in possession. They may also take
with them the written instructions given, and notes of the testimony
or other proceedings on the trial, taken by themselves or any of
them, but none taken by any other person. The court shall provide
for the custody and safekeeping of such items.



1138. After the jury have retired for deliberation, if there be any
disagreement between them as to the testimony, or if they desire to
be informed on any point of law arising in the case, they must
require the officer to conduct them into court. Upon being brought
into court, the information required must be given in the presence
of, or after notice to, the prosecuting attorney, and the defendant
or his counsel, or after they have been called.



1138.5. Except for good cause shown, the judge in his of her
discretion need not be present in the court while testimony
previously received in evidence is read to the jury.



1140. Except as provided by law, the jury cannot be discharged
after the cause is submitted to them until they have agreed upon
their verdict and rendered it in open court, unless by consent of
both parties, entered upon the minutes, or unless, at the expiration
of such time as the court may deem proper, it satisfactorily appears
that there is no reasonable probability that the jury can agree.



1141. In all cases where a jury is discharged or prevented from
giving a verdict by reason of an accident or other cause, except
where the defendant is discharged during the progress of the trial,
or after the cause is submitted to them, the cause may be again
tried.



1142. While the jury are absent the Court may adjourn from time to
time, as to other business, but it must nevertheless be open for
every purpose connected with the cause submitted to the jury until a
verdict is rendered or the jury discharged.

[/align]

[هيثم الفقى]

[align=left]
1147. When the jury have agreed upon their verdict, they must be
conducted into court by the officer having them in charge. Their
names must then be called, and if all do not appear, the rest must be
discharged without giving a verdict. In that case the action may be
again tried.



1148. If charged with a felony the defendant must, before the
verdict is received, appear in person, unless, after the exercise of
reasonable diligence to procure the presence of the defendant, the
court shall find that it will be in the interest of justice that the
verdict be received in his absence. If for a misdemeanor, the
verdict may be rendered in his absence.



1149. When the jury appear they must be asked by the Court, or
Clerk, whether they have agreed upon their verdict, and if the
foreman answers in the affirmative, they must, on being required,
declare the same.


1150. The jury must render a general verdict, except that in a
felony case, when they are in doubt as to the legal effect of the
facts proved, they may, except upon a trial for libel, find a special
verdict.


1151. A general verdict upon a plea of not guilty is either "guilty"
or "not guilty," which imports a conviction or acquittal of the
offense charged in the accusatory pleading. Upon a plea of a former
conviction or acquittal of the offense charged, or upon a plea of
once in jeopardy, the general verdict is either "for the people" or
"for the defendant." When the defendant is acquitted on the ground
of a variance between the accusatory pleading and the proof, the
verdict is "not guilty by reason of variance between charge and
proof."


1152. A special verdict is that by which the jury find the facts
only, leaving the judgment to the Court. It must present the
conclusions of fact as established by the evidence, and not the
evidence to prove them, and these conclusions of fact must be so
presented as that nothing remains to the Court but to draw
conclusions of law upon them.



1153. The special verdict must be reduced to writing by the jury,
or in their presence entered upon the minutes of the Court, read to
the jury and agreed to by them, before they are discharged.



1154. The special verdict need not be in any particular form, but
is sufficient if it presents intelligibly the facts found by the
jury.


1155. The court must give judgment upon the special verdict as
follows:
1. If the plea is not guilty, and the facts prove the defendant
guilty of the offense charged in the indictment or information, or of
any other offense of which he could be convicted under that
indictment or information, judgment must be given accordingly. But
if otherwise, judgment of acquittal must be given.
2. If the plea is a former conviction or acquittal or once in
jeopardy of the same offense, the court must give judgment of
acquittal or conviction, as the facts prove or fail to prove the
former conviction or acquittal or jeopardy.



1156. If the jury do not, in a special verdict, pronounce
affirmatively or negatively on the facts necessary to enable the
court to give judgment, or if they find the evidence of facts merely,
and not the conclusions of fact, from the evidence, as established
to their satisfaction, the court shall direct the jury to retire and
return another special verdict. The court may explain to the jury
the defect or insufficiency in the special verdict returned, and the
form which the special verdict to be returned must take.



1157. Whenever a defendant is convicted of a crime or attempt to
commit a crime which is distinguished into degrees, the jury, or the
court if a jury trial is waived, must find the degree of the crime or
attempted crime of which he is guilty. Upon the failure of the jury
or the court to so determine, the degree of the crime or attempted
crime of which the defendant is guilty, shall be deemed to be of the
lesser degree.



1158. Whenever the fact of a previous conviction of another offense
is charged in an accusatory pleading, and the defendant is found
guilty of the offense with which he is charged, the jury, or the
judge if a jury trial is waived, must unless the answer of the
defendant admits such previous conviction, find whether or not he has
suffered such previous conviction. The verdict or finding upon the
charge of previous conviction may be: "We (or I) find the charge of
previous conviction true" or "We (or I) find the charge of previous
conviction not true," according as the jury or the judge find that
the defendant has or has not suffered such conviction. If more than
one previous conviction is charged a separate finding must be made as
to each.



1158a. (a) Whenever the fact that a defendant was armed with a
weapon either at the time of his commission of the offense or at the
time of his arrest, or both, is charged in accordance with section
969c of this code, in any count of the indictment or information to
which the defendant has entered a plea of not guilty, the jury, if
they find a verdict of guilty of the offense with which the defendant
is charged, or of any offense included therein, must also find
whether or not the defendant was armed as charged in the count to
which the plea of not guilty was entered. The verdict of the jury
upon a charge of being armed may be: "We find the charge of being
armed contained in the ____ count true," or "We find the charge of
being armed contained in the ____ count not true," as they find that
the defendant was or was not armed as charged in any particular count
of the indictment or information. A separate verdict upon the
charge of being armed must be returned for each count which alleges
that the defendant was armed.
(b) Whenever the fact that a defendant used a firearm is charged
in accordance with Section 969d in any count of the indictment or
information to which the defendant has entered a plea of not guilty,
the jury if they find a verdict of guilty of the offense with which
the defendant is charged must also find whether or not the defendant
used a firearm as charged in the count to which the plea of not
guilty was entered. A verdict of the jury upon a charge of using a
firearm may be: "We find the charge of using a firearm contained in
the ____ count true," or "We find the charge of using a firearm
contained in the ____ count not true," as they find that the
defendant used or did not use a firearm as charged in any particular
count of the indictment or information. A separate verdict upon the
charge of using a firearm shall be returned for each count which
alleges that defendant used a firearm.



1159. The jury, or the judge if a jury trial is waived, may find
the defendant guilty of any offense, the commission of which is
necessarily included in that with which he is charged, or of an
attempt to commit the offense.


1160. On a charge against two or more defendants jointly, if the
jury cannot agree upon a verdict as to all, they may render a verdict
as to the defendant or defendants in regard to whom they do agree,
on which a judgment must be entered accordingly, and the case as to
the other may be tried again.
Where two or more offenses are charged in any accusatory pleading,
if the jury cannot agree upon a verdict as to all of them, they may
render a verdict as to the charge or charges upon which they do
agree, and the charges on which they do not agree may be tried again.




1161. When there is a verdict of conviction, in which it appears to
the Court that the jury have mistaken the law, the Court may explain
the reason for that opinion and direct the jury to reconsider their
verdict, and if, after the reconsideration, they return the same
verdict, it must be entered; but when there is a verdict of
acquittal, the Court cannot require the jury to reconsider it. If
the jury render a verdict which is neither general nor special, the
Court may direct them to reconsider it, and it cannot be recorded
until it is rendered in some form from which it can be clearly
understood that the intent of the jury is either to render a general
verdict or to find the facts specially and to leave the judgment to
the Court.



1162. If the jury persist in finding an informal verdict, from
which, however, it can be clearly understood that their intention is
to find in favor of the defendant upon the issue, it must be entered
in the terms in which it is found, and the Court must give judgment
of acquittal. But no judgment of conviction can be given unless the
jury expressly find against the defendant upon the issue, or judgment
is given against him on a special verdict.



1163. When a verdict is rendered, and before it is recorded, the
jury may be polled, at the request of either party, in which case
they must be severally asked whether it is their verdict, and if any
one answer in the negative, the jury must be sent out for further
deliberation.



1164. (a) When the verdict given is receivable by the court, the
clerk shall record it in full upon the minutes, and if requested by
any party shall read it to the jury, and inquire of them whether it
is their verdict. If any juror disagrees, the fact shall be entered
upon the minutes and the jury again sent out; but if no disagreement
is expressed, the verdict is complete, and the jury shall, subject to
subdivision (b), be discharged from the case.
(b) No jury shall be discharged until the court has verified on
the record that the jury has either reached a verdict or has formally
declared its inability to reach a verdict on all issues before it,
including, but not limited to, the degree of the crime or crimes
charged, and the truth of any alleged prior conviction whether in the
same proceeding or in a bifurcated proceeding.



1165. Where a general verdict is rendered or a finding by the court
is made in favor of the defendant, except on a plea of not guilty by
reason of insanity, a judgment of acquittal must be forthwith given.
If such judgment is given, or a judgment imposing a fine only,
without imprisonment for nonpayment is given, and the defendant is
not detained for any other legal cause, he must be discharged, if in
custody, as soon as the judgment is given, except that where the
acquittal is because of a variance between the pleading and the proof
which may be obviated by a new accusatory pleading, the court may
order his detention, to the end that a new accusatory pleading may be
preferred, in the same manner and with like effect as provided in
Section 1117.



1166. If a general verdict is rendered against the defendant, or a
special verdict is given, he or she must be remanded, if in custody,
or if on bail he or she shall be committed to the proper officer of
the county to await the judgment of the court upon the verdict,
unless, upon considering the protection of the public, the
seriousness of the offense charged and proven, the previous criminal
record of the defendant, the probability of the defendant failing to
appear for the judgment of the court upon the verdict, and public
safety, the court concludes the evidence supports its decision to
allow the defendant to remain out on bail. When committed, his or
her bail is exonerated, or if money is deposited instead of bail it
must be refunded to the defendant or to the person or persons found
by the court to have deposited said money on behalf of said
defendant.


1167. When a jury trial is waived, the judge or justice before whom
the trial is had shall, at the conclusion thereof, announce his
findings upon the issues of fact, which shall be in substantially the
form prescribed for the general verdict of a jury and shall be
entered upon the minutes.



1168. (a) Every person who commits a public offense, for which any
specification of three time periods of imprisonment in any state
prison is now prescribed by law or for which only a single term of
imprisonment in state prison is specified shall, unless such
convicted person be placed on probation, a new trial granted, or the
imposing of sentence suspended, be sentenced pursuant to Chapter 4.5
(commencing with Section 1170) of Title 7 of Part 2.
(b) For any person not sentenced under such provision, but who is
sentenced to be imprisoned in the state prison, including
imprisonment not exceeding one year and one day, the court imposing
the sentence shall not fix the term or duration of the period of
imprisonment.[/align]

[هيثم الفقى]

Initial Sentencing

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) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(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 that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that 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 shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The 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 secretary.
(b) When a judgment of imprisonment is to be imposed and the
statute specifies three possible terms, the choice of the appropriate
term shall rest within the sound discretion of the court. 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. In
determining the appropriate 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 select the term which, in the court's
discretion, best serves the interests of justice. The court shall set
forth on the record the reasons for imposing the term selected and
the court may not impose an upper term by using the fact of any
enhancement upon which sentence is imposed under any 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 secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, 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), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary 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 that the facts described in subparagraph (A) and (B)
or subparagraphs (B) and (C) exist:
(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.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.

The Board of Parole Hearings 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
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary 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 secretary shall make
a recommendation to the Board of Parole Hearings 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.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(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.
(h) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before that date, deletes or extends that
date.



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) Notwithstanding paragraph (1), the Legislature further finds
and declares that programs should be available for inmates,
including, but not limited to, educational programs, that are
designed to prepare nonviolent felony offenders for successful
reentry into the community. The Legislature encourages the
development of policies and programs designed to educate and
rehabilitate nonviolent felony offenders. In implementing this
section, the Department of Corrections and Rehabilitation is
encouraged to give priority enrollment in programs to promote
successful return to the community to an inmate with a short
remaining term of commitment and a release date that would allow him
or her adequate time to complete the program.
(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 that it is required by law to impose as an
additional term. Nothing in this article shall affect any provision
of law that imposes the death penalty, that 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 shall be deemed to have been served and the defendant shall
not be actually delivered to the custody of the secretary. The court
shall advise the defendant that he or she shall serve a period of
parole and order the defendant to report to the parole office closest
to the defendant's last legal residence, unless the in-custody
credits equal the total sentence, including both confinement time and
the period of parole. The 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 secretary.
(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 any 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 secretary, the court
may, within 120 days of the date of commitment on its own motion, or
at any time upon the recommendation of the secretary or the Board of
Parole Hearings, 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), if the secretary or the Board of
Parole Hearings or both determine that a prisoner satisfies the
criteria set forth in paragraph (2), the secretary 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 that the facts described in subparagraphs (A) and
(B) or subparagraphs (B) and (C) exist:
(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.
(C) The prisoner is permanently medically incapacitated with a
medical condition that renders him or her permanently unable to
perform activities of basic daily living, and results in the prisoner
requiring 24-hour total care, including, but not limited to, coma,
persistent vegetative state, brain death, ventilator-dependency, loss
of control of muscular or neurological function, and that
incapacitation did not exist at the time of the original sentencing.

The Board of Parole Hearings 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
secretary or the board, the court shall hold a hearing to consider
whether the prisoner's sentence should be recalled.
(4) Any physician employed by the department who determines that a
prisoner has six months or less to live shall notify the chief
medical officer of the prognosis. If the chief medical officer
concurs with the prognosis, he or she shall notify the warden. Within
48 hours of receiving notification, the warden or the warden's
representative shall notify the prisoner of the recall and
resentencing procedures, and shall arrange for the prisoner to
designate a family member or other outside agent to be notified as to
the prisoner's medical condition and prognosis, and as to the recall
and resentencing procedures. If the inmate is deemed mentally unfit,
the warden or the warden's representative shall contact the inmate's
emergency contact and provide the information described in paragraph
(2).
(5) The warden or the warden's representative shall provide the
prisoner and his or her family member, agent, or emergency contact,
as described in paragraph (4), updated information throughout the
recall and resentencing process with regard to the prisoner's medical
condition and the status of the prisoner's recall and resentencing
proceedings.
(6) Notwithstanding any other provisions of this section, the
prisoner or his or her family member or designee may independently
request consideration for recall and resentencing by contacting the
chief medical officer at the prison or the secretary. Upon receipt of
the request, the chief medical officer and the warden or the warden'
s representative shall follow the procedures described in paragraph
(4). If the secretary determines that the prisoner satisfies the
criteria set forth in paragraph (2), the secretary or board may
recommend to the court that the prisoner's sentence be recalled. The
secretary 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 secretary shall make
a recommendation to the Board of Parole Hearings 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.
(7) Any recommendation for recall submitted to the court by the
secretary or the Board of Parole Hearings shall include one or more
medical evaluations, a postrelease plan, and findings pursuant to
paragraph (2).
(8) If possible, the matter shall be heard before the same judge
of the court who sentenced the prisoner.
(9) If the court grants the recall and resentencing application,
the prisoner shall be released by the department within 48 hours of
receipt of the court's order, unless a longer time period is agreed
to by the inmate. At the time of release, the warden or the warden's
representative shall ensure that the prisoner has each of the
following in his or her possession: a discharge medical summary, full
medical records, state identification, parole medications, and all
property belonging to the prisoner. After discharge, any additional
records shall be sent to the prisoner's forwarding address.
(10) The secretary shall issue a directive to medical and
correctional staff employed by the department that details the
guidelines and procedures for initiating a recall and resentencing
procedure. The directive shall clearly state that any prisoner who is
given a prognosis of six months or less to live is eligible for
recall and resentencing consideration, and that recall and
resentencing procedures shall be initiated upon that prognosis.
(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.
(h) This section shall become operative on January 1, 2009.



1170.1. (a) Except as otherwise provided by law, 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 shall consist of
one-third of the middle term of imprisonment prescribed for each
other felony conviction 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) If a person is convicted of two or more violations of
kidnapping, as defined in Section 207, involving separate victims,
the subordinate term for each consecutive offense of kidnapping shall
consist of the full middle term and shall include the full term
imposed for specific enhancements applicable to those subordinate
offenses.
(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
that 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). This subdivision shall be applicable in cases of
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 or subdivision (b) of Section 1168, the court shall
also impose, in addition and consecutive to the offense of which the
person has been convicted, the additional terms provided for any
applicable enhancements. If an enhancement is punishable by one of
three terms, the court shall impose the middle term unless there are
circumstances in aggravation or mitigation, and state the reasons for
its sentence choice, other than the middle term, on the record at
the time of sentencing. 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 or subdivision (b) of Section 1168. 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 on the same victim 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 a firearm.
(h) For any violation of an offense specified in Section 667.6,
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 provision of law. Each of the
enhancements shall be a full and separately served term.



1170.11. As used in Section 1170.1, the term "specific enhancement"
means an enhancement that relates to the circumstances of the crime.
It includes, but is not limited to, the enhancements provided in
Sections 186.10, 186.11, 186.22, 186.26, 186.33, 273.4, 289.5, 290.4,
290.45, 290.46, 347, and 368, subdivisions (a) and (b) of Section
422.75, paragraphs (2), (3), (4), and (5) of subdivision (a) of
Section 451.1, paragraphs (2), (3), and (4) of subdivision (a) of
Section 452.1, subdivision (g) of Section 550, Sections 593a, 600,
667.8, 667.85, 667.9, 667.10, 667.15, 667.16, 667.17, 674, 675,
12021.5, 12022, 12022.2, 12022.3, 12022.4, 12022.5, 12022.53,
12022.55, 12022.6, 12022.7, 12022.75, 12022.8, 12022.85, 12022.9,
12022.95, 12072, and 12280 of this code, and in Sections 1522.01 and
11353.1, subdivision (b) of Section 11353.4, Sections 11353.6,
11356.5, 11370.4, 11379.7, 11379.8, 11379.9, 11380.1, 11380.7,
25189.5, and 25189.7 of the Health and Safety Code, and in Sections
20001 and 23558 of the Vehicle Code, and in Sections 10980 and 14107
of the Welfare and Institutions 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 *** 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
[align=left]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).



1170.125. Notwithstanding Section 2 of Proposition 184, as adopted
at the November 8, 1994, general election, for all offenses committed
on or after the effective date of this act, all references to
existing statutes in Section 1170.12 are to those statutes as they
existed on the effective date of this act, including amendments made
to those statutes by the act enacted during the 2005-06 Regular
Session that amended this section.



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.



1170.15. 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 of a felony, and of an additional felony that is a
violation of Section 136.1 or 137 and that 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 that was
committed to dissuade a witness or potential witness to the first
felony, the subordinate term for each consecutive offense that 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 for being armed with or using a
dangerous or deadly weapon or a firearm, or for inflicting great
bodily injury.


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.


1170.17. (a) When a person is prosecuted for a criminal offense
committed while he or she was under the age of 18 years and the
prosecution is lawfully initiated in a court of criminal jurisdiction
without a prior finding that the person is not a fit and proper
subject to be dealt with under the juvenile court law, upon
subsequent conviction for any criminal offense, the person shall be
subject to the same sentence as an adult convicted of the identical
offense, in accordance with the provisions set forth in subdivision
(a) of Section 1170.19, except under the circumstances described in
subdivision (b) or (c).
(b) Where the conviction is for the type of offense which, in
combination with the person's age at the time the offense was
committed, makes the person eligible for transfer to a court of
criminal jurisdiction, pursuant to a rebuttable presumption that the
person is not a fit and proper subject to be dealt with under the
juvenile court law, and the prosecution for the offense could not
lawfully be initiated in a court of criminal jurisdiction, then
either of the following shall apply:
(1) The person shall be subject to the same sentence as an adult
convicted of the identical offense in accordance with the provisions
set forth in subdivision (a) of Section 1170.19, unless the person
prevails upon a motion brought pursuant to paragraph (2).
(2) Upon a motion brought by the person, the court shall order the
probation department to prepare a written social study and
recommendation concerning the person's fitness to be dealt with under
the juvenile court law and the court shall either conduct a fitness
hearing or suspend proceedings and remand the matter to the juvenile
court to prepare a social study and make a determination of fitness.
The person shall receive a disposition under the juvenile court law
only if the person demonstrates, by a preponderance of the evidence,
that he or she is a fit and proper subject to be dealt with under the
juvenile court law, based upon each of the following five criteria:

(A) The degree of criminal sophistication exhibited by the person.

(B) Whether the person can be rehabilitated prior to the
expiration of the juvenile court's jurisdiction.
(C) The person's previous delinquent history.
(D) Success of previous attempts by the juvenile court to
rehabilitate the person.
(E) The circumstances and gravity of the offense for which the
person has been convicted.
If the court conducting the fitness hearing finds that the person
is not a fit and proper subject for juvenile court jurisdiction, then
the person shall be sentenced by the court where he or she was
convicted, in accordance with the provisions of paragraph (1). If
the court conducting the hearing on fitness finds that the person is
a fit and proper subject for juvenile court jurisdiction, then the
person shall be subject to a disposition in accordance with the
provisions of subdivision (b) of Section 1170.19.
(c) Where the conviction is for the type of offense which, in
combination with the person's age at the time the offense was
committed, makes the person eligible for transfer to a court of
criminal jurisdiction, pursuant to a rebuttable presumption that the
person is a fit and proper subject to be dealt with under the
juvenile court law, then the person shall be sentenced as follows:
(1) The person shall be subject to a disposition under the
juvenile court law, in accordance with the provisions of subdivision
(b) of Section 1170.19, unless the district attorney prevails upon a
motion, as described in paragraph (2).
(2) Upon a motion brought by the district attorney, the court
shall order the probation department to prepare a written social
study and recommendation concerning whether the person is a fit and
proper subject to be dealt with under the juvenile court law. The
court shall either conduct a fitness hearing or suspend proceedings
and remand the matter to the juvenile court for a determination of
fitness. The person shall be subject to a juvenile disposition under
the juvenile court law unless the district attorney demonstrates, by
a preponderance of the evidence, that the person is not a fit and
proper subject to be dealt with under the juvenile court law, based
upon the five criteria set forth in paragraph (2) of subdivision (b).
If the person is found to be not a fit and proper subject to be
dealt with under the juvenile court law, then the person shall be
sentenced in the court where he or she was convicted, in accordance
with the provisions set forth in subdivision (a) of Section 1170.19.
If the person is found to be a fit and proper subject to be dealt
with under the juvenile court law, the person shall be subject to a
disposition, in accordance with the provisions of subdivision (b) of
Section 1170.19.
(d) Where the conviction is for the type of offense which, in
combination with the person's age, does not make the person eligible
for transfer to a court of criminal jurisdiction, the person shall be
subject to a disposition in accordance with the provisions of
subdivision (b) of Section 1170.19.



1170.19. (a) Notwithstanding any other provision of law, the
following shall apply to a person sentenced pursuant to Section
1170.17.
(1) The person may be committed to the Youth Authority only to the
extent the person meets the eligibility criteria set forth in
Section 1732.6 of the Welfare and Institutions Code.
(2) The person shall not be housed in any facility under the
jurisdiction of the Department of Corrections, if the person is under
the age of 16 years.
(3) The person shall have his or her criminal court records
accorded the same degree of public access as the records pertaining
to the conviction of an adult for the identical offense.
(4) Subject to the knowing and intelligent consent of both the
prosecution and the person being sentenced pursuant to this section,
the court may order a juvenile disposition under the juvenile court
law, in lieu of a sentence under this code, upon a finding that such
an order would serve the best interests of justice, protection of the
community, and the person being sentenced. Prior to ordering a
juvenile disposition, the court shall cause to be received into
evidence a social study by the probation officer, prepared pursuant
to Section 706 of the Welfare and Institutions Code, and shall state
that the social study made by the probation officer has been read and
considered by the court.
(b) Notwithstanding any other provision of law, the following
shall apply to a person who is eligible to receive a juvenile
disposition pursuant to Section 1170.17.
(1) The person shall be entitled a hearing on the proper
disposition of the case, conducted in accordance with the provisions
of Section 706 of the Welfare and Institutions Code. The court in
which the conviction occurred shall order the probation department to
prepare a written social study and recommendation concerning the
proper disposition of the case, prior to conducting the hearing or
remand the matter to the juvenile court for purposes of preparing the
social study, conducting the disposition hearing pursuant to Section
706 of the Welfare and Institutions Code, and making a disposition
order under the juvenile court law.
(2) The person shall have his or her conviction deemed to be a
finding of delinquency wardship under Section 602 of the Welfare and
Institutions Code.
(3) The person shall have his or her criminal court records
accorded the same degree of confidentiality as if the matter had been
initially prosecuted as a delinquency petition in the juvenile
court.
(4) Subject to the knowing and intelligent consent of both the
prosecution and the person being sentenced pursuant to this section,
the court may impose an adult sentence under this code, in lieu of
ordering a juvenile disposition under the juvenile court law, upon a
finding that such an order would serve the best interests of justice,
protection of the community, and the person being sentenced. Prior
to ordering an adult sentence, the court shall cause to be received
into evidence a social study by the probation officer, prepared
pursuant to Section 706 of the Welfare and Institutions Code, and
shall state that the social study prepared by the probation officer
has been read and considered by the court.



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, middle, 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.
(c) This section shall remain in effect only until January 1,
2009, and as of that date is repealed, unless a later enacted
statute, that is enacted before January 1, 2009, deletes or extends
that date.


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.
(c) This section shall become operative on January 1, 2009.




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.


1170.7. 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.



1170.76. The fact that a defendant who commits or attempts to
commit a violation of Section 243.4, 245, or 273.5 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, or 266j 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, or 12022.55 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. (a) In the case of any person convicted of a criminal
offense who would otherwise be sentenced to county jail or state
prison and who alleges that he or she committed the offense as a
result of post-traumatic stress disorder, substance abuse, or
psychological problems stemming from service in a combat theater in
the United States military, the court shall, prior to sentencing,
hold a hearing to determine whether the defendant was a member of the
military forces of the United States who served in combat and shall
assess whether the defendant suffers from post-traumatic stress
disorder, substance abuse, or psychological problems as a result of
that service.
(b) If the court concludes that a defendant convicted of a
criminal offense is a person described in subdivision (a), and if the
defendant is otherwise eligible for probation and the court places
the defendant on probation, the court may order the defendant into a
local, state, federal, or private nonprofit treatment program for a
period not to exceed that which the defendant would have served in
state prison or county jail, provided the defendant agrees to
participate in the program and the court determines that an
appropriate treatment program exists.
(c) If a referral is made to the county mental health authority,
the county shall be obligated to provide mental health treatment
services only to the extent that resources are available for that
purpose, as described in paragraph (5) of subdivision (b) of Section
5600.3 of the Welfare and Institutions Code. If mental health
treatment services are ordered by the court, the county mental health
agency shall coordinate appropriate referral of the defendant to the
county veterans service officer, as described in paragraph (5) of
subdivision (b) of Section 5600.3 of the Welfare and Institutions
Code. The county mental health agency shall not be responsible for
providing services outside its traditional scope of services. An
order shall be made referring a defendant to a county mental health
agency only if that agency has agreed to accept responsibility for
the treatment of the defendant.
(d) When determining the "needs of the defendant," for purposes of
Section 1202.7, the court shall consider the fact that the defendant
is a person described in subdivision (a) in assessing whether the
defendant should be placed on probation and whether the defendant
would be best served while on probation by being ordered into a
private nonprofit treatment service program with a demonstrated
history of specializing in the treatment of military service-related
issues, such as post-traumatic stress disorder, substance abuse, or
psychological problems.
(e) A defendant granted probation under this section and committed
to a residential treatment program shall earn sentence credits for
the actual time the defendant served in residential treatment.
(f) The court, in making an order under this section to commit a
defendant to an established treatment program, shall give preference
to a treatment program that has a history of successfully treating
combat veterans who suffer from post-traumatic stress disorder,
substance abuse, or psychological problems as a result of that
service.[/align]