3 California Criminal Law
(3d), Punishment
I. INTRODUCTION
A. Objectives of Criminal Punishment.
1. [§1] General Principles.
2. [§2] Current Emphasis.
B. [§3] Function of Trial Judge in Punishment.
C. [§4] Function of Jury in Punishment.
D. [§5] Nature and Kinds of Punishment.
II. CORRECTIONAL SYSTEM
A. [§6] Department of Corrections.
B. [§7] Board of Prison Terms.
C. [§8] Youth Authority and Youthful Offender Parole Board.
D. [§9] Board of Corrections.
E. [§10] Restitution Centers.
F. [§11] Community Correctional Centers.
F-1.[§11A](New) Skilled Nursing Facilities.
G. [§12] Other State Agencies.
H. [§13] Local Correctional System.
I. Interstate Corrections Compacts.
1. [§14] Adoption and Nature of Compacts.
2. [§15] Restrictions and Conditions.
III. SENTENCE TO COUNTY JAIL
A. [§16] Nature of Confinement.
B. Jail Conditions and Treatment of Prisoners.
1. [§17] In General.
2. [§18] Family Visits.
3. [§19] Temporary Release.
4. Treatment of Male and Female Prisoners.
(a) [§20] Special Provisions for Women.
(b) [§21] Equal Treatment.
5. [§22] Medical Care.
6. Pretrial Detainees.
(a) [§23] Reasonable Restrictions Permissible.
(b) [§24] Involuntary Medication.
7. [§25] Prisoner Representing Self.
8. [§25A] (New) Sexually Violent Predators.
C. Work by Prisoners.
1. [§26] In Jail.
2. In Farm or Road Camp.
(a) [§27] Nature and Purpose.
(b) [§28] Administration.
(c) [§29] Joint and Regional Camps.
3. On Work Furlough.
(a) [§30] Statutory Provisions.
(b) [§31] Trial Court May Not Order Placement.
4. [§32] In Work Release Program.
D. [§33] Deductions From Sentence.
IV. IMPRISONMENT IN STATE PRISON
A. [§34] Prisons for Men.
B. [§35] Prisons for Women.
C. [§36] Wardens.
D. Prison Conditions and Treatment of Prisoners.
1. [§37] In General.
2. [§38] Mentally Ill Prisoners.
3. [§39] Detection and Treatment of Communicable Diseases.
4. [§40] Valid Restrictions on Prisoners' Activities.
5. [§41] Other Statutory Protections.
E. Rights of Prisoners.
1. [§42] In General.
2. [§43] Federal Approach.
3. [§44] California Approach.
4. Civil Rights.
(a) [§45] Basic Statutes.
(b) [§46] Scope of Protection.
5. Access to Courts.
(a) [§47] In General.
(b) [§48] Scope of Constitutional Right.
(c) [§49] Access to Civil Courts.
(d) Access to Counsel.
(1) [§50] In General.
(2) [§51] Correspondence With Attorney.
(3) [§52] Telephone Access.
(4) [§53] Contact Visits.
(e) [§54] Access to Jailhouse Lawyers.
(f) [§55] Access to Lawbooks and Legal Materials.
6. [§56] Freedom of Religion.
7. Mail and Reading Matter.
(a) [§57] Reading Matter.
(b) [§58] Personal Correspondence.
(c) [§59] Correspondence With Other Inmates.
8. [§60] Prison Newspapers.
9. [§61] Prisoner Organizations.
10. [§62] Marital and Familial Rights.
11. Medical Care.
(a) [§63] Right To Receive Treatment.
(b) [§64] Right To Refuse Treatment.
(c) [§65] Biomedical and Behavioral Research.
12. [§66] Other Rights.
F. [§67] Profits From Crime.
G. Disciplinary Proceedings.
1. [§68] Procedural Safeguards: Federal Cases.
2. [§69] Procedural Safeguards: California Cases.
3. [§70] Nature of Punishment.
H. Employment of Prisoners.
1. [§71] In General.
2. [§72] Workers' Compensation.
3. [§73] Particular Employments.
I. [§74] Special Requirements for Women Prisoners.
J. [§75] Payment of Costs of Imprisonment.
V. COMMITMENT OF MINORS TO YOUTH AUTHORITY
A. [§76] Youth Authority Act.
B. Commitment by Criminal Court.
1. [§77] Persons Eligible for Commitment.
2. [§78] Persons Ineligible for Commitment.
3. [§79] Trial Court's Discretion.
4. [§80] Factors To Be Considered.
5. [§81] Commitment Procedure.
6. [§82] Authority's Refusal To Accept Commitment.
C. Detention and Treatment of Minor.
1. [§83] Institutions and Facilities.
2. [§84] Treatment and Work.
3. Period of Detention.
(a) [§85] In General.
(b) [§86] Constitutional Limitations.
(c) [§87] Extended Detention.
D. [§88] Return of Incorrigible Person.
E. [§89] Probation and Parole.
F. [§90] Discharge.
G. [§91] Subsequent Imprisonment for Balance of Term.
VI. PAYMENT OF FINE
A. [§92] In General.
B. Imprisonment Until Fine Paid.
1. [§93] General Rule.
2. [§94] Application to Indigent Unconstitutional.
C. [§95] Manner of Payment.
D. [§96] Enforcement.
VII. PAYMENT OF RESTITUTION
A. [§97] In General.
B. [§98] Restitution Fine.
C. [§99] Procedure in Imposing Restitution Fine.
D. Restitution to Victim.
1. [§100] Constitutional Right.
2. [§101] Statutory Requirement.
3. [§102] Definition of Victim.
4. [§103] Restitution Order.
5. [§104] Amount of Restitution.
6. [§105] Enforcement of Order.
7. [§106] Joint and Several Liability.
VIII. REMOVAL AND DISQUALIFICATION FROM OFFICE
A. [§107] Removal.
B. [§108] Disqualification.
IX. CRUEL AND UNUSUAL PUNISHMENT
A. [§109] Constitutional and Statutory Provisions.
B. [§110] Element of Due Process.
C. Scope of Protection.
1. [§111] General Principles.
2. Excessive Sentence.
(a) [§112] Federal Approach.
(b) [§113] California Approach: Lynch Analysis.
(c) [§114] Application of Lynch: Dillon Case.
(d) [§115] Equal Protection Analysis.
(e) [§116] Where and How Issue May Be Raised.
(f) Illustrations: Punishment Excessive.
(1) [§117] Narcotics Offenses.
(2) [§118] Other Offenses.
(g) Illustrations: Punishment Not Excessive.
(1) [§119] Murder.
(2) [§120] Sex Offenses.
(3). [§121] Narcotics Offenses.
(4) [§122] Other Offenses.
3. [§123] Excessive Force.
4. [§124] Corporal Punishment and Discipline.
5. Deliberate Indifference to Prisoner's Needs.
(a) [§125] Medical and Human Needs.
(b) [§126] Security Needs.
6. [§127] Deprivation of Citizenship.
7. [§128] Punishment for Disease or Status.
X. INVALID MULTIPLE PUNISHMENT
A. In General.
1. [§129] Nature and Purpose of Statute.
2. [§130] Particular Commitments.
3. [§131] Included Offenses.
4. [§132] Enhancements.
4A. [§132A] (New) One Strike Sentencing Circumstance.
5. [§133] Death Penalty: Aggravating Factors.
B. [§134] Double Jeopardy Distinguished.
C. Multiple Prosecutions Prohibited.
1. [§135] Statutory Requirement.
2. [§136] Single Prosecution Rule.
3. [§137] Test for Applying Rule.
4. [§138] Distinction: Retrial After Mistrial or Reversal.
5. [§139] Rule Applies to Judicial Proceedings Only.
6. Exceptions to Rule.
(a) [§140] In General.
(b) [§141] Defendant Responsible for Claimed Violation.
(c) [§142] Infractions.
(d) [§143] Second Prosecution Based on Subsequent Events.
D. Effect of Violation.
1. [§144] In General.
2. [§145] Where Defendant Pleads Guilty or Nolo Contendere.
3. [§146] Where Defendant Agrees to Sentence.
E. Procedure in Trial Court.
1. [§147] Stay of Execution.
2. [§148] Longest Sentence Must Be Imposed.
F. What Constitutes Act or Omission.
1. [§149] The Ultimate Object Test.
2. [§150] Illustrations.
3. [§151] Separate Criminal Acts.
4. Multiple Victims.
(a) [§152] In General.
(b) [§153] Application of Rule.
5. [§154] Multiple Offenses Against Property.
6. [§154A] (New) Determination by Trial Court.
G. Particular Crimes.
1. [§155] Homicide and Other Crimes.
2. Kidnaping and Robbery or Rape.
(a) [§156] Single Act.
(b) [§157] Divisible Acts.
3. Robbery and Assault.
(a) [§158] Single Act.
(b) [§159] Divisible Acts.
4. [§160] Robbery or Theft and Burglary.
5. [§161] Robbery and Narcotics Possession.
6. [§162] Robbery and Other Crimes.
7. [§163] Burglary and Other Crimes.
8. Sex Offenses.
(a) [§164] In General.
(b) [§165] Multiple Violations of Same Statute.
(c) [§166] Effect of Specific Statute.
9. [§167] Theft and Other Crimes.
10. [§168] Forgery and False Writings.
11. Narcotics Offenses.
(a) [§169] In General.
(b) [§170] Possession and Other Crimes.
(c) [§171] Offenses of the Same Type.
12. [§172] Driving Under the Influence: Multiple Victims.
13. [§173] Conspiracy.
14. [§174] Intimidating Witness.
15. [§175] Illegal Possession of Weapon.
16. [§176] Multiple Assaults.
17. [§177] Miscellaneous Crimes.
XI. EFFECTS OF CONVICTION OTHER THAN CRIMINAL PUNISHMENT
A. [§178] Loss of Civil Rights.
B. Registration Requirements Generally.
1. [§179] Types of Statutes.
2. [§180] Controlled Substance Offenders.
3. [§181] Arson Offenders.
4. [§182] Gang Members.
C. Sex Offenders.
1. [§183] In General.
1A. [§183A] (New) Proposition 83.
2. Registration Requirement.
(a) [§184] Nature and Purpose.
(b) [§185] Persons Required To Register.
(b-1) [§185A] (New) Transient Offenders.
(c) [§186] Exemptions.
(d) [§187] Constitutionality.
(e) [§188] Violations.
3. Public Disclosure
(a) [§189] Collection of Information.
(b) [§190] Public Access.
(c) [§191] Disclosure.
4. [§192] Chemical Castration.
5. Commitment of Sexually Violent Predators.
(a) [§193] In General.
(b) [§194] Definitions.
(c) [§195] Screening, Evaluation, and Referral.
(d) [§196] Probable Cause Hearing.
(d-1) [§196A] (New) Discovery.
(d-2) [§196B] (New) Summary Judgment Procedures Are Not Applicable.
(d-3) [§196C] (New) Mandatory dismissal Provisions Are Not Applicable.
(e) [§197] Trial and Review.
(f) [§198] Commitment and Treatment.
(g) [§199] Release and Discharge.
(h) [§200] Constitutionality.
D. Forfeiture of Property.
1. [§201] In General.
2. Criminal Actions.
(a) [§202] Statutory Provisions.
(b) [§203] Proof Required.
3. [§204] Noncriminal Actions.
4. Constitutional Limitations.
(a) [§205] Notice and Hearing.
(b) [§206] Innocent Owner Defense Not Required.
(c) Excessive Fines Prohibition.
(1) [§207] In General.
(2) [§208] Standard of Excessiveness.
5. Controlled Substances Offenses.
(a) [§209] In General.
(b) [§210] Effect of Lapse of 1988 Statutes.
(c) [§211] Property Subject to Forfeiture.
(d) [§212] Required Nexus Between Money and Crime.
(e) [§213] Seizure of Property.
(f) [§214] Necessity for Conviction.
(g) Forfeiture Proceeding.
(1) [§215] Commencement of Proceedings.
(2) [§216] Alternative Procedure for Personal Property.
(3) [§217] Motion for Return.
(4) [§218] Third-Party Claim.
(5) [§219] Hearing.
6. Profits of Organized Crime.
(a) [§220] In General.
(b) [§221] Definitions.
(c) [§222] Commencement of Proceeding.
(d) [§223] Hearing and Forfeiture.
E. [§224] Civil Action Against Minor's Parents.
F. Loss of Professional or Business License.
1. [§225] In General.
2. [§226] Particular Professions.
G. Loss of Automobile Driver's License.
1. [§227] In General.
2. Action by Court.
(a) [§228] Discretionary Suspension.
(b) [§229] Mandatory Suspension.
3. Action by Department.
(a) [§230] In General.
(b) Mandatory Suspension or Revocation.
(1) [§231] Drunk Driving.
(2) [§232] Excessive Speed.
(3) [§233] Offenses Involving Injury.
(4) [§234] Other Serious Offenses.
(5) [§235] Effect of Criminal Proceedings.
(c) Discretionary Suspension or Revocation.
(1) [§236] Grounds.
(2) [§237] Distinction: Investigation and Hearing.
(d) [§238] Implied Consent Law.
XII. ADMINISTRATIVE DISCIPLINE WITHOUT CRIMINAL
CONVICTION
A. [§239] Professional Discipline.
B. [§240] Nature of Proceedings.
XIII. PUNISHMENT FOR ATTEMPTS
A. [§241] Location or Type of Punishment for Attempted Offense.
B. [§242] Crime Divided into Degrees.
C. [§243] Exceptions and Distinctions.
XIV. PUNISHMENT FOR MISDEMEANORS
A. [§244] Where Punishment Not Specified.
B. [§245] Maximum Confinement One Year.
C. [§246] Consecutive Sentences for Multiple Offenses.
XV. PUNISHMENT FOR NONCAPITAL FELONIES
A. In General.
1. [§247] State Prison Term.
2. [§248] County Jail Sentence.
3. [§249] Commitment to Nonpenal Institution.
4. [§250] Commitment of Vietnam Veteran to Federal Institution.
B. Determinate Sentencing Law.
1. [§251] In General.
2. [§252] Application of Statute.
3. [§253] Sentencing Proceeding.
4. Base Term.
(a) [§254] In General.
(b) [§255] Statements in Aggravation and Mitigation.
(c) No Dual Use of Facts.
(1) [§256] Fact of Enhancement.
(2) [§257] Element of Crime.
(3) [§258] Exception: Facts About Probation.
(4) [§259] Distinction: Related Facts.
5. Circumstances in Aggravation.
(a) [§260] In General.
(b) [§261] Effect of Contrary Findings.
(c) Facts Relating to the Crime.
(1) [§262] Use of Violence or Weapon.
(2) [§263] Victim's Status.
(3) [§264] Defendant's Role.
(4) [§265] Interference With Judicial Process.
(5) [§266] Value or Quantity.
(6) [§267] Other Factors.
(d) [§268] Facts Relating to Defendant.
6. Circumstances in Mitigation.
(a) [§269] In General.
(b) [§270] Facts Relating to the Crime.
(c) Facts Relating to Defendant.
(1) [§271] Listed Factors.
(2) [§272] Alcoholism or Drug Addiction.
7. Effect of Plea Bargain.
(a) [§273] General Rule: No Consideration of Dismissed Charges.
(b) [§274] Exception: Transactionally Related Charges.
(c) [§275] Sentence Not Authorized by Law.
(d) [§275A] (New) Waiver of Right to Alternative Sentence.
8. Statement of Reasons.
(a) [§276] In General.
(b) [§277] Failure To Object Waives Error.
(c) [§278] When Statement Is Required.
(d) [§279] When Statement Is Not Required.
(e) [§280] Adequacy of Statement.
9. Enhancements.
(a) [§281] In General.
(b) [§282] Pleading and Proof.
(c) [§283] Sentencing Procedure.
(d) Consecutive Sentences.
(1) [§284] Criteria for Decision.
(2) [§285] Separate Proceedings.
(3) [§286] Indeterminate Term Consecutive to Determinate Term.
(4) [§287] California Term Consecutive to Non-California Term.
(e) Great Bodily Injury.
(1) [§288] Nature and Application.
(2) [§289] Personal Infliction.
(3) [§290] In Commission of Felony.
(4) [§291] Nature of Injury.
(f) [§292] Large Loss or Transaction.
(g) [§293] Aggravated White Collar Crime.
(h) [§294] Fraud in Repair of Structure Damaged by Natural Disaster.
(i) [§295] Felony Committed While on Bail or Own Recognizance.
(j) [§296] Kidnaping Offenses.
(k) [§297] Sex Offenses.
(l) [§298] Crime Against Sex Offender.
(m) [§299] Injury Resulting in Termination of Pregnancy.
(n) [§300] Shooting Resulting in Paralysis or Paraparesis.
(o) [§301] Cruelty to Child Resulting in Death.
(p) [§302] Value or Amount of Controlled Substance.
(q) [§303] Other Controlled Substance Enhancements.
(r) [§304] Wearing Body Vest During Violent Offense.
(s) [§305] Hate Crimes.
(t) [§306] Offense Against Physically Vulnerable Person.
(u) [§307] Arson Offenses.
10. Limitations on Enhancements.
(a) [§308] Consecutive Sentences: One-Third Midterm.
(b) [§309] Weapons and Great Bodily Injury Enhancements.
(c) Exceptions to Limitations.
(1) [§310] Kidnaping.
(2) [§311] Sex Offenses.
(3) [§312] Crimes by Prisoner or Escapee.
(4) [§313] Crimes Against Victim or Witness.
11. [§314] Power To Strike Enhancements.
12. Recall of Sentence
(a) [§315] Statutory Authority.
(b) [§316] Procedure.
(c) [§317] Scope of Power.
C. Additional Punishment Under Dangerous Weapons' Act.
1. [§318] In General.
2. [§319] Procedure.
3. Enhancements.
(a) [§320] P.C. 12022: Defendant Was Armed or Used Deadly Weapon.
(b) [§321] P.C. 12022.5: Personal Use of Firearm.
(c) [§322] P.C. 12022.53: Personal Use of Firearm in Specified Felonies.
(d) [§323] P.C. 12021.5: Street Gang Crimes.
(e) [§324] P.C. 12022.3: Sex Crimes.
(f) [§325] Other Provisions.
4. [§326] What Is Firearm or Weapon.
5. What Constitutes Use.
(a) [§327] In General.
(b) [§328] Single Use Is Sufficient.
6. [§329] What Constitutes "Armed."
7. [§330] "Use" Distinguished From "Armed."
8. [§331] Multiple Victims.
9. [§332] Relation to Other Laws.
D. Penalties Based on Prior Convictions.
1. [§333] In General.
2. [§334] Theft After Prior Conviction.
3. Prior Prison Term.
(a) [§335] In General.
(b) [§336] Violent Felonies.
(c) [§337] What Is Prior Prison Term.
(d) [§338] Felony From Another Jurisdiction.
(e) [§339] Dual Use of Prior Conviction.
4. Prior Serious Felony.
(a) [§340] Nature of Enhancement.
(b) What Is Serious Felony.
(1) [§341] In General.
(2) [§342] Statutory Provisions.
(3) [§343] Proof That Felony Is Serious.
(c) [§344] Separate Proceedings Requirement.
(d) [§345] Procedure.
(e) [§346] Dual Use of Prior Conviction.
5. Prior Conviction of Sex Crime.
(a) [§347] Violent Crimes.
(b) [§348] Habitual Offender.
(c) [§349] Lewd Act.
6. [§350] Great Bodily Injury With Prior Convictions.
7. [§351] Controlled Substance Offenses.
8. [§352] Offense Against Physically Vulnerable Person.
9. Three Strikes Law.
(a) [§353] Adoption and Application.
(b) Constitutionality.
(1) [§354] In General.
(2) [§355] Not Cruel and Unusual Punishment.
(c) [§356] Governing Rules.
(d) What Is Prior Conviction.
(1) [§357] Violent or Serious Felony.
(2) [§358] Out-of-State Conviction.
(3) [§359] Juvenile Adjudication.
(e) [§360] Sentence When Defendant Has Single Prior Conviction.
(f) [§361] Sentence When Defendant Has Multiple Prior Convictions.
(g) Consecutive Sentencing.
(1) [§362] Statutory Provisions.
(2) [§363] Relationship Between Provisions.
(3) [§364] Exception for Same Occasion or Operative Facts.
(h) [§365] Enhancements.
(i) [§366] Dual Use of Prior Conviction.
(j) [§367] Felony-Misdemeanors ("Wobblers").
(k) [§368] Pleading and Proof.
(l) Power To Strike Prior Convictions.
(l) [§369] Court Retains Discretion To Strike.
(2) [§370] Scope of Discretion.
(3) [§371] Appellate Review.
(4) [§372] Procedure for Challenging Failure To Exercise Discretion.
10. [§373] Prior Felony in Another Jurisdiction.
11. Procedure.
(a) [§374] Accusatory Pleading.
(b) [§375] Answer.
(c) [§376] Effect of Defendant's Admission.
(d) [§377] Trial of Issue.
(e) [§378] Evidence.
(f) [§379] Finding.
(g) [§380] Review on Appeal.
(h) Review on Habeas Corpus.
(1) [§381] Propriety of Remedy.
(2) [§382] Scope of Review.
E. Violent Sex Crimes.
1. [§383] Fully Consecutive Sentences.
2. [§384] Discretion of Trial Judge.
3. [§385] Separate Occasions.
4. One Strike Law.
(a) [§386] In General.
(b) [§387] Minimum Term: 15 Years.
(c) [§388] Minimum Term: 25 Years.
(d) [§389] Imposition of Sentence.
F. Credits Against Sentence.
1. Presentence Custody Credits.
(a) [§390] Credit for All Days of Custody.
(b) Effect of Dual Custody.
(1) [§391] Nature of Problem.
(2) [§392] Rule of Strict Causation.
(3) [§393] Defendant Imprisoned on Another Sentence Awaiting Trial.
(4) [§394] Defendant Subject to Parole or Probation Hold or Revocation.
(5) [§395] Absconders and Escapers.
(6) [§396] Credit Applicable to Subordinate Term.
(c) [§397] Particular Confinements.
(d) [§398] Juveniles and Youthful Offenders.
(e) [§399] Waiver.
2. Conduct Credits.
(a) [§400] Local Custody.
(b) State Prison Custody.
(1) [§401] Eligibility for Credit.
(2) [§402] Limitations on Credit.
(3) [§403] Persons Ineligible for Credit.
(4) [§404] Suspension of Eligibility.
(5) [§405] Denial of Credit.
(c) [§406] Other Custody.
(d) [§407] Juveniles and Youthful Offenders.
XVI. CAPITAL PUNISHMENT
A. [§408] In General.
B. Cruel and Unusual Punishment Issues.
1. [§409] Early Cases.
2. Death Penalty Constitutional.
(a) [§410] California Constitution and Statutes.
(b) [§411] Federal Constitution.
3. Guided Discretion.
(a) [§412] In General.
(b) [§413] Effect of Invalid Aggravating Factor.
4. Mitigating Evidence.
(a) [§414] All Mitigating Evidence Must Be Considered.
(b) [§415] Compatibility With Requirement of Guided Discretion.
5. [§416] Weighing of Factors by Appellate Court.
6. [§417] Manner of Execution.
7. [§418] Delay in Execution.
8. Restrictions on Imposition.
(a) [§419] Death Penalty for Murder.
(b) [§420] Mandatory Death Penalty Unconstitutional.
(c) [§421] Death Penalty for Rape Unconstitutional.
(d) Death Penalty for Felony Murder.
(1) [§422] No Intent To Kill.
(2) [§423] Reckless Indifference.
(e) [§424] Death Penalty for Minors.
(f) [§425] Death Penalty for Insane or Mentally Disabled Persons.
(g) [§426] Death Penalty May Not Be Restricted to Jury Cases.
(h) [§427] Sentencing Procedures Must Meet Due Process Standards.
(i) [§428] Consideration of Lesser Included Offenses.
9. [§429] Proportionality Review Is Not Required.
10. [§430] Unconstitutionality Not Established by Proof of Disparate Impact.
11. [§431] Retroactivity.
C. California Death Penalty Law.
1. [§432] In General.
2. [§433] Former Law.
3. 1978 Statute.
(a) [§434] In General.
(b) [§435] Constitutionality Upheld.
(c) [§436] Subsequent Amendment.
4. [§437] Offenses Punishable by Death.
5. Special Circumstances.
(a) [§438] In General.
(b) [§439] Prior Murders.
(c) [§440] Multiple Murders.
(d) [§441] Murder for Financial Gain.
(e) [§442] Murder To Prevent Arrest or Perfect Escape.
(f) [§443] Murder To Further Gang Activities.
(g) [§444] Murder by Destructive Device.
(h) [§445] Murder by Lying in Wait.
(i) [§446] Murder by Torture or Poison.
(j) [§447] Murder by Discharge of Firearm From Vehicle.
(k) [§448] Especially Heinous, Atrocious, or Cruel Murder.
(l) [§449] Murder Because of Race, Color, Religion, Nationality, or Country of Origin.
(m) Felony-Murder.
(1) [§450] In General.
(2) [§451] Corpus Delicti Rule Not Applicable.
(3) [§452] Killing Incidental to Felony.
(4) [§453] Intent.
(n) Particular Victims.
(1) [§454] In General.
(2) [§455] Law Enforcement Officers.
(3) [§456] Firefighters.
(4) [§457] Witnesses to Crime.
(5) [§458] Prosecutor, Judge, Public Official, or Juror.
(o) [§459] Special Circumstances Not Involving Death Penalty.
6. [§460] Aider and Abettor.
7. Proof of Special Circumstances.
(a) [§461] In General.
(b) [§462] Multiple Special Circumstances.
8. Penalty Phase of Trial.
(a) [§463] Nature and Development of Proceeding.
(b) [§464] Sequence of Phases.
(c) [§465] Function of Judge and Jury.
(d) [§466] Discretion of Trier of Fact.
(e) Evidence.
(1) [§467] In General.
(2) [§468] Rebuttal Evidence.
(3) [§469] Comment by Judge.
(f) Aggravating Circumstances.
(1) [§470] Notice of Intended Use.
(2) Factors Properly Considered.
(aa) [§471] Circumstances of Crime.
(bb) [§472] Impact on Victim.
(cc) [§473] Criminal Activity Involving Force or Violence.
(dd) [§474] Prior Felony Conviction.
(ee) [§475] Other Factors.
(3) Factors Not Properly Considered.
(aa) [§476] Deterrent Effect of Death Penalty.
(bb) [§477] Effect of Life Sentence.
(cc) [§478] Absence of Mitigating Factors.
(dd) [§479] Other Factors.
(g) Mitigating Circumstances.
(1) [§480] In General.
(2) [§481] Failure To Present Mitigating Evidence.
(3) Factors Properly Considered.
(aa) [§482] Defendant's Background and History.
(bb) [§483] Defendant's Mental Condition.
(cc) [§484] Other Extenuating Circumstances.
(dd) [§485] Other Factors.
(4) Factors Not Properly Considered.
(aa) [§486] Lack of Deterrent Effect of Death Penalty.
(bb) [§487] Other Factors.
(h) Argument.
(1) [§488] In General.
(2) [§489] Effect of Life Sentence.
(3) [§490] Jury's Weighing Process.
(4) [§491] Appeal to Religious Authority.
(5) [§492] Other Illustrations.
(i) Instructions.
(1) [§493] In General.
(2) [§494] Weighing Process.
(3) [§495] Sympathy and Related Instructions.
(4) [§496] Possibility of Clemency.
(5) [§497] Other Instruction Issues.
(j) [§498] Verdict.
(k) [§499] Application for Modification.
(l) [§500] Automatic Appeal.
(m) [§501] Preparation and Certification of Record.
XVII. PROBATION
A. In General.
1. [§502] Nature and Purpose.
2. [§503] Probation Officers and Agencies.
3. [§504] Supervision of Probationer.
B. When Probation Cannot Be Granted.
1. [§505] Former Statutory Framework.
2. [§506] Personal Use of Firearm.
3. [§507] Infliction of Great Bodily Injury.
4. [§508] Felony Against Aged or Handicapped Person.
5. [§509] Lewd Act With Child.
6. [§510] Other Sex Offenses.
7. Controlled Substances Offenses.
(a) [§511] Penal Code Provisions.
(b) [§512] Health and Safety Code Provisions.
8. [§513] Felony Involving Public Transit Vehicle.
9. [§514] Designated Felonies Within Ten-Year Period.
10. [§515] Felony by Person on Parole or Probation.
11. [§516] Other Offenses.
C. When Probation Is Possible but Disfavored.
1. [§517] P.C. 1203.
2. [§518] Other Statutory Provisions.
3. [§519] Unusual Circumstances Justifying Probation.
4. [§520] Procedure.
D. Reference or Summary Pronouncement.
1. Reference to Probation Officer in Felony Case.
(a) Necessity of Reference.
(1) [§521] Mandatory Requirement.
(2) [§522 ] Waiver.
(3) [§523] New Reference After Reversal on Appeal.
(4) [§524] Effect of Defendant's Ineligibility.
(b) Report by Probation Officer.
(1) [§525] In General.
(2) [§526] Required Contents.
(3) [§527] Improper Contents.
(4) [§528] Availability of Report.
(c) [§529] Hearing and Determination.
2. Reference or Summary Pronouncement in Misdemeanor or Infraction Case.
(a) [§530] Election To Refer.
(b) [§531] Conditional Sentence.
E. Action Taken.
1. In General.
(a) [§532] Discretion of Trial Judge.
(b) [§533] Criteria Affecting Grant or Denial of Probation.
2. Grounds for Reversal of Order Denying Probation.
(a) [§534] Failure To Determine Merits of Application.
(b) [§535] Lack of Fundamental Fairness.
(c) [§536] Ex Parte Communications.
(d) [§537] Abuse of Discretion.
3. Granting of Probation.
(a) Alternative Procedures.
(1) [§538] In General.
(2) [§539] Imposition of Sentence Suspended Without Judgment.
(3) [§540] Execution of Sentence Suspended After Judgment.
(4) [§541] Suspension as Alternative If Probation Is Denied.
(b) Period.
(1) [§542] Felony Cases.
(2) [§543] Misdemeanor Cases.
(c) Defendant's Rejection of Probation.
(1) [§544] Right To Reject.
(2) [§545] Manifestation of Rejection.
F. Conditions.
1. Permissible Conditions.
(a) [§546] Scope of Discretion.
(b) County Jail Sentence and Fine.
(1) [§547] Permissible.
(2) [§548] Mandatory.
(c) Restitution.
(1) [§549] Statutory Requirements.
(2) [§550] Definitions.
(3) [§551] Proper When Related to Crime for Which Convicted.
(4) [§552] Improper When Not Related to Crime for Which Convicted.
(5) [§553] Defendant's Ability To Pay.
(6) [§554] Amount and Manner of Disbursement.
(d) [§555] Payment of Probation Costs.
(e) [§556] Payment of Incarceration Costs.
(f) Other Express Conditions Authorized by P.C. 1203.1.
(1) [§557] In General.
(2) [§558] Catch-all Provision Requiring Affirmative Act.
(3) [§559] Catch-all Provision Requiring Abstention.
(g) Other Express Conditions Authorized by Miscellaneous Statutes.
(1) [§560] In General.
(2) [§561] Counseling, Treatment, or Education.
(h) [§562] Implied Conditions.
2. Invalid Conditions.
(a) [§563] Circumstances Required for Invalidity.
(b) [§564] Failure To Object Precludes Challenge on Appeal.
(c) [§565] Banishment From County, State, or Country.
(d) [§566] Prohibition Against Pregnancy.
(e) [§567] Unwarranted Requirement of Psychiatric Treatment.
(f) [§568] Overbroad Interference With First Amendment Rights.
(g) [§569] Attempt To Influence Board of Prison Terms.
(h) [§570] Waiver of Knock and Announce Requirements.
(i) [§571] Reimbursement of Cost of Appointed Counsel.
(j) [§572] Other Invalid Conditions.
F-1. [§572A] (New) Continuous Electronic Monitoring.
G. Modification.
1. [§573] Power To Modify.
2. [§574] New Facts Essential.
3. [§575] New Conditions Imposed.
4. [§576] Procedure.
H. Revocation.
1. Power To Revoke.
(a) [§577] In General.
(b) [§578] Time Limitations.
2. Due Process Requirements.
(a) [§579] Former Law.
(b) [§580] Hearing Before Sentencing.
(c) [§581] Similarity Between Parole and Probation Revocation.
(d) [§582] When Previously Sentenced Probationer Is Entitled to Counsel.
(e) [§583] When Hearing Required.
3. Procedure.
(a) [§584] Statutory Requirements.
(b) Formal Revocation Hearing.
(1) [§585] In General.
(2) [§586] Conduct of Hearing.
(3) [§587] Hearing Before Trial on Concurrent Criminal Charges.
(4) [§588] Hearing Concurrent With Preliminary Examination.
(5) [§589] Right of Confrontation.
(c) [§590] Vacation and Review of Revocation Order.
4. Imposition or Execution of Sentence Following Revocation.
(a) [§591] In General.
(b) Where Imposition of Sentence Was Suspended.
(1) [§592] Length of Sentence.
(2) [§593] Due Process Rights.
(3) Probationer Imprisoned for Another Offense.
(aa) [§594] In General.
(bb) [§595] Procedure.
(cc) [§596] Failure To Give Imprisoned Defendant Notice of Pending Revocation Proceeding.
(dd) [§597] Commitment Required.
(ee) [§598] Application to Out-of-State Prisoners.
(ff) [§599] Optional Procedures for Unsentenced Probationer.
(c) [§600] Where Execution of Sentence Was Suspended.
I. Dismissal.
1. After Fulfillment of Conditions.
(a) [§601] Nature of Right.
(b) [§602] Procedure.
(c) [§603] Remaining Effects of Conviction.
2. [§604] Without Probation.
J. Sealing of Minor's Misdemeanor Records.
1. Where Minor Was Convicted.
(a) [§605] In General.
(b) [§606] Constitutionality.
(c) [§607] Power To Seal Is Statutory.
(d) [§608] Effect of Prior Sealing on Subsequent Sealing.
2. [§609] Where Minor Was Not Convicted.
XVIII. PAROLE
A. [§610] In General.
B. From State Prison.
1. In General.
(a) [§611] Board of Prison Terms.
(b) [§612] Notice of Impending Release.
(c) [§613] Liberty Interest Protected by Due Process.
2. Limitations on Power.
(a) [§614] When Parole Is Prohibited.
(b) [§615] Requirement of Minimum Period of Service.
3. Setting Conditions and Length of Parole.
(a) Under Former Indeterminate Sentence Law.
(1) [§616] In General.
(2) [§617] Statement of Reasons Required.
(3) [§618] Rescission of Parole Date Before Parole Begins.
(4) [§619] Discovery of Information Affecting Denial of Parole.
(5) [§620] Condition of Trial Elsewhere.
(b) Under Current Law.
(1) [§621] In General.
(2) [§622] County of Return.
(3) Hearing Procedure.
(aa) [§623] In General.
(bb) [§624] Conduct of Hearing.
(cc) [§625] Determination.
(dd) [§626] Participation of Victim and Family.
(ee) [§627] Public Participation.
(ff) [§628] Request or Review by Governor.
(4) Conditions of Parole.
(aa) [§629] Discretionary Conditions.
(bb) [§630] Mandatory Conditions.
(cc) [§631] Constructive Custody of Parolee.
(5) Parole Period.
(aa) [§632] Under Determinate Sentencing Law.
(bb [§633] Under Indeterminate Sentence Law.
(cc) [§634] For Persons Convicted of Murder.
(dd) [§635] For Life Prisoners.
(6) [§636] Mandatory Discharge From Custody.
(7) [§637] Concurrent California and Out-of-State Sentences.
(8) Mentally Disordered Prisoners.
(aa) [§638] Treatment as Condition of Parole.
(bb) [§639] Continued Involuntary Treatment: Report to District Attorney.
(cc) [§640] Hearing and Trial.
(dd) [§640A] (New) No Right to Instruction on Presumption of Innocence.
(ee) [§640B] (New) Right to refuse Antipsychotic Medication.
(9) (New) Sex Offenders.
(aa) [§640C] (New) In General
(bb) [§640D] (New) Parole Period.
(cc) [§640E] (New) Intensive Supervision.
4. Suspension and Revocation.
(a) [§641] In General.
(b) [§642] Effect of Revocation on Term.
(c) [§643] Distinction: No Revocation After Term Served.
(d) Good Cause.
(1) [§644] Necessity.
(2) [§645] Scope of Review.
(e) Constitutional Requirement of Due Process.
(1) [§646] Parole Protected by Fourteenth Amendment.
(2) [§647] Alleged New Offense as Basis for Revocation.
(3) [§648] Limited Right to Counsel.
(4) [§649] Right to Information.
(5) [§650] No Right to Bail.
(6) [§651] Extradition Proceedings.
(7) [§652] Incarceration in Other Jurisdiction.
(8) [§653] Waiver of Hearing Rights.
(9) [§654] Effect of Denial of Rights.
(f) (New) Drug Treatment Under Proposition 36.
(1) [§654A] (New) In General.
(2) [§654B] (New) Sanctions.
(g) [§654C] (New) Intermediate Sanctions In Lieu of Revocation.
C. From County Jail.
1. [§655] In General.
2. [§656] Grant of Parole.
3. [§657] Revocation of Parole.
4. [§658] Repayment of Costs.
D. Work Furlough Program.
1. [§659] In General.
2. [§660] Placement of Inmates in Program.
3. [§661] Notification of Inmate's Pending Release or Escape.
E. [§662] Out-of-State Supervision of Probationers and Parolees.
F. [§662A] (New) Continuous Electronic Monitoring.
G. [§662B] (New) Reentry Program Facilities.
XIX. EXECUTIVE CLEMENCY
A. [§663] Nature of Powers.
B . Commutation and Pardon.
1. Procedure.
(a) [§664] Recommendation by Board of Prison Terms.
(b) [§665] Application by Prisoner.
(c) [§666] Investigation and Report.
(d) [§667] Referral to Supreme Court.
(e) [§668] Decision and Report by Governor.
2. Effect of Full Pardon.
(a) [§669] In General.
(b) [§670] Indemnity for Person Pardoned.
XX. REHABILITATION PROCEEDING
A. [§671] In General.
B. [§672] Petition, Notice, and Investigation.
C. [§673] Order, Certificate, and Pardon.
D. [§674] Effect of Certificate and Pardon.