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CALIFORNIA Legislation
Cal. Pen. Code § 667.61
Specified Sex Offenses Subject to Punishment by Incarceration for Life
a) Except as provided in subdivision (j), (l), or (m), a person who is convicted of an offense specified in subdivision (c) under one or more of the circumstances specified in subdivision
b) or under two or more of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 25 years to life.
c) Except as provided in subdivision (a), (j), (l), or (m), a person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e) shall be punished by imprisonment in the state prison for 15 years to life.
d) This section shall apply to any of the following offenses:
Rape, in violation of paragraph (2) or (6) of subdivision (a) of Section 261.
Rape, in violation of paragraph (1) or (4) of subdivision (a) of former 262.
Rape or sexual penetration, in concert, in violation of Section 264.1.
Lewd or lascivious act, in violation of subdivision (b) of Section 288.
Sexual penetration, in violation of subdivision (a) of Section 289.
Sodomy, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 286.
Oral copulation, in violation of paragraph (2) or (3) of subdivision (c), or subdivision (d), of Section 287 or former Section 288a.
Lewd or lascivious act, in violation of subdivision (a) of Section 288.
Continuous sexual abuse of a child, in violation of Section 288.5.
d) The following circumstances shall apply to the offenses specified in subdivision (c):
The defendant has been previously convicted of an offense specified in subdivision (c), including an offense committed in another jurisdiction that includes all of the elements of an offense specified in subdivision (c).
The defendant kidnapped the victim of the present offense and the movement of the victim substantially increased the risk of harm to the victim over and above that level of risk necessarily inherent in the underlying offense in subdivision (c).
The defendant inflicted aggravated mayhem or torture on the victim or another person in the commission of the present offense in violation of Section 205 or 206.
The defendant committed the present offense during the commission of a burglary of the first degree, as defined in subdivision (a) of Section 460, with intent to commit an offense specified in subdivision (c).
The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 287 or former Section 288a, and, in the commission of that offense, any person committed any act described in paragraph (2), (3), or (4) of this subdivision.
The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.
The defendant personally inflicted bodily harm on the victim who was under 14 years of age.
e) The following circumstances shall apply to the offenses specified in subdivision (c):
Except as provided in paragraph (2) of subdivision (d), the defendant kidnapped the victim of the present offense in violation of Section 207, 209, or 209.5.
Except as provided in paragraph (4) of subdivision (d), the defendant committed the present offense during the commission of a burglary in violation of Section 459.
The defendant personally used a dangerous or deadly weapon or a firearm in the commission of the present offense in violation of Section 12022, 12022.3, 12022.5, or 12022.53.
The defendant has been convicted in the present case or cases of committing an offense specified in subdivision (c) against more than one victim.
The defendant engaged in the tying or binding of the victim or another person in the commission of the present offense.
The defendant administered a controlled substance to the victim in the commission of the present offense in violation of Section 12022.75.
The defendant committed the present offense in violation of Section 264.1, subdivision (d) of Section 286, or subdivision (d) of Section 287 or former Section 288a, and, in the commission of that offense, any person committed an act described in paragraph (1), (2), (3), (5), or (6) of this subdivision or paragraph (6) of subdivision (d).
f) If only the minimum number of circumstances specified in subdivision (d) or (e) that are required for the punishment provided in subdivision (a), (b), (j), (l), or (m) to apply have been pled and proved, that circumstance or those circumstances shall be used as the basis for imposing the term provided in subdivision (a), (b), (j), (l), or (m) whichever is greater, rather than being used to impose the punishment authorized under any other law, unless another law provides for a greater penalty or the punishment under another law can be imposed in addition to the punishment provided by this section. However, if any additional circumstance or circumstances specified in subdivision (d) or (e) have been pled and proved, the minimum number of circumstances shall be used as the basis for imposing the term provided in subdivision (a), (j), or (l) and any other additional circumstance or circumstances shall be used to impose any punishment or enhancement authorized under any other law.
g) Notwithstanding Section 1385 or any other law, the court shall not strike any allegation, admission, or finding of any of the circumstances specified in subdivision (d) or
for any person who is subject to punishment under this section.
Notwithstanding any other law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who is subject to punishment under this section.
For any offense specified in paragraphs (1) to (7), inclusive, of subdivision (c), or in paragraphs (1) to (6), inclusive, of subdivision (n), the court shall impose a consecutive sentence for each offense that results in a conviction under this section if the crimes involve separate victims or involve the same victim on separate occasions as defined in subdivision (d) of Section 667.6.
A person who is convicted of an offense specified in subdivision (c), with the exception of a violation of subdivision (a) of Section 288, upon a victim who is a child under 14 years of age under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), shall be punished by imprisonment in the state prison for life without the possibility of parole. Where the person was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life.
A person who is convicted of an offense specified in subdivision (c) under one of the circumstances specified in subdivision (e), upon a victim who is a child under 14 years of age, shall be punished by imprisonment in the state prison for 25 years to life.
As used in this section, “bodily harm” means any substantial physical injury resulting from the use of force that is more than the force necessary to commit an offense specified in subdivision (c).
A person who is convicted of an offense specified in subdivision (n) under one or more of the circumstances specified in subdivision (d) or under two or more of the circumstances specified in subdivision (e), upon a victim who is a minor 14 years of age or older shall be punished by imprisonment in the state prison for life without the possibility of parole. If the person who was convicted was under 18 years of age at the time of the offense, the person shall be punished by imprisonment in the state prison for 25 years to life.
A person who is convicted of an offense specified in subdivision (n) under one of the circumstances specified in subdivision (e) against a minor 14 years of age or older shall be punished by imprisonment in the state prison for 25 years to life.
Subdivisions (l) and (m) shall apply to any of the following offenses:
(1) Rape, in violation of paragraph (2) of subdivision (a) of Section 261.
Rape, in violation of paragraph (1) of subdivision (a) of former Section 262.
Rape or sexual penetration, in concert, in violation of Section 264.1.
Sexual penetration, in violation of paragraph (1) of subdivision (a) of Section 289.
Sodomy, in violation of paragraph (2) of subdivision (c) of Section 286, or in violation of subdivision (d) of Section 286.
Oral copulation, in violation of paragraph (2) of subdivision (c) of Section 287 or former Section 288a, or in violation of subdivision (d) of Section 287 or former Section 288a.
The penalties provided in this section shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section, and is either admitted by the defendant in open court or found to be true by the trier of fact.
Amendment History:
1997 Amendment:
Deleted (1) “208,” after “violation of Section 207,” in subd (e)(1); and (2) “a” after “to be true by the trier of” in subd (i).
1998 Amendment:
Substituted (1) “12022.53, 12022.7,” for “12022.7” in subd (e)(3); and (2) “12022.5, or 12022.53” for “or 12022.5” in subd (e)(4).
2006 Amendment (ch 337):
(1) Amended subd (a) by substituting (a) “Any” for “A” at the beginning; and (b) “25 years to life” for “life and shall not be eligible for release on parole for 25 years except as provided in subdivision (j)” at the end; (2) amended subd (b) by substituting (a) “any” for “a” after “provided in subdivision (a),”; and (b) “15 years to life” for “life and shall not be eligible for release on parole for 15 years except as provided in subdivision (j)” at the end; (3) substituted subds (c)(1)–(c)(3) for former subds (c)(1)–(c)(3) which read “(1) A violation of paragraph (2) of subdivision (a) of Section 261. (2) A violation of paragraph (1) of subdivision (a) of Section 262.
(3) A violation of Section 264.1.”; (4) added “lewd or lascivious act, in” after “A” in subd (c)(4);
(5) substituted “Sexual penetration, in” for “A” at the beginning in subd (c)(5); (6) substituted subds (c)(6) and (c)(7) for former subds (c)(6) or (c)(7) which read: “(6) Sodomy or oral copulation in violation of Section 286 or 288a by force, violence, duress, menace, or fear of immediate and unlawful bodily injury on the victim or another person. (7) A violation of subdivision (a) of Section 288, unless the defendant qualifies for probation under subdivision (c) of Section 1203.066.”; (7) added subds (c)(8) and (c)(9); (8) added “of the first degree,” after “commission of a burglary” in subd (d)(4); (9) added subd (d)(5); (10) deleted “as defined in subdivision (a) of Section 460, or during the commission of a burglary of a building, including any commercial establishment, which was then closed to the public,” after “commission of a burglary,” in subd (e)(2); (11) added “a” after “or a deadly weapon” in subd (e)(4); (12) deleted “by force, violence, or fear” after “substance to the victim” in subd (e)(7); (13) added subd (e)(8); (14) amended subd (f) by (a) substituting “that” for “which” after “subdivision (d) or (e)”; (b) adding “, whichever is greater,” after “in subdivision (a) or (b)”; (c) adding “provision of” after (i) “punishment authorized under any other”; (ii) law, unless another”; and (iii) “enhancement authorized under any other”; (d) adding “, or the punishment under another provision of law may be imposed in addition to the punishment provided by this section” after “provides for a greater penalty”; and (e) deleting “Notwithstanding any other law, the court shall not strike any of the circumstances specified in subdivision (d) or (e).” at the end; (15) amended subd (g) by (a) deleting the former first two sentences which read: “The term specified in subdivision (a) or (b) shall be imposed on the defendant once for any offense or the term specified in subdivision (a) or (b) shall be imposed on the defendant once for each separate victim. Terms for other offenses committed during a single occasion shall be imposed as authorized under any other law, including Section 667.7, if applicable.”; and (b) adding the second and third sentences; (16) amended subd (h) by (a) adding “Notwithstanding any other provision of law,” at the beginning; and (b) deleting “for any offense specified in paragraphs (1) to (6), inclusive, of subdivision (c)” at the end; (17) added subd (i); (18) redesignated former subd (i) to be subd (j);
(19) amended subd (j) by (a) deleting “For” from the beginning; and (b) substituting “shall apply only if the existence of any circumstance specified in subdivision (d) or (e) is alleged in the accusatory pleading pursuant to this section” for “to apply, the existence of any fact required under subdivision (d) or (e) shall be alleged in the accusatory pleading” after “provided in this section”; and (20) deleted former subd (j) which read: “(j) Article 2.5 (commencing with Section 2930) of Chapter 7 of Title 1 of Part 3 shall apply to reduce the minimum term of 25 years in the state prison imposed pursuant to subdivision (a) or 15 years in the state prison imposed pursuant to subdivision (b). However, in no case shall the minimum term of 25 or 15 years be reduced by more than 15 percent for credits granted pursuant to Section 2933, 4019, or any other law providing for conduct credit reduction. In no case shall any person who is punished under this section be released on parole prior to serving at least 85 percent of the minimum term of 25 or 15 years in the state prison.”
2006 Amendment (Prop. 83):
(1) Deleted “A” at the beginning of subds (c)(4) and (c)(8); (2) deleted the comma after “of a burglary” in subd (e)(2); (3) amended the first sentence of subd (f) by (a) deleting the comma after “a greater penalty”; and (b) substituting “can” for “may” after “provision of law” the second time it appears; (4) deleted the comma after “on separate occasions” in subd (i); and (5) substituted “, and is” for “and” after “to this section” in subd (j).
2010 Amendment:
(1) Added “Except as provided in subdivision (j), ( l), or (m),” in subd (a); (2) added “, (j), ( l), or (m)” in subd (b); (3) deleted former subd (e)(3) which read: “(3) The defendant personally inflicted great bodily injury on the victim or another person in the commission of the present offense in violation of Section 12022.53, 12022.7, or 12022.8.”; (4) redesignated former subds (e)(4)–(e)(8) to be subds (e)(3)–(e)(7); (5) substituted “paragraph (1), (2), (3), (5), or (6)” for “(1), (2), (3), (4), (6), or (7)” in subd (e)(7); (6) amended subd (f) by (a) substituting “(a), (b), (j), ( l), or (m)” for “(a) or (b)” both times it appears in the first sentence; and (b) adding “(j), or ( l)” after “provided in subdivision (a),” in the last sentence” (7) added “or in paragraphs (1) to (6), inclusive, of subdivision (n),” in subd (i); (8) added subds (j)–(n); and (9) redesignated former subd (j) to be subd (o).
2011 Amendment:
Added “or paragraph (6) of subdivision (d)” in subd (e)(7).
2018 Amendment (ch 423):
Added “Section 287 or former” in (c)(7), (d)(5), (e)(7) and twice in (n)(6).
2021 Amendment (ch 626):
Substituted “a person” for “any person” in (a) and (b); in (c)(2), substituted “Rape, in violation” for “Spousal rape, in violation” and added “former”; substituted “Rape or sexual penetration” for “Rape, spousal rape, or sexual penetration” in (c)(3); substituted “an act described” for “any act described” in (e)(7); deleted “provision of” preceding “law” four times in (f), in (g) and in (h); substituted “a person” for “any person” in (h); substituted “A person” for “Any person” in (j)(1), (j)(2), (l) and (m); substituted “the person shall be punished” for “he or she shall be punished” in (l); in (n)(2), substituted “Rape, in violation” for “Spousal rape, in violation” and added “former”; and substituted “Rape or sexual penetration” for “Rape, spousal rape, or sexual penetration” in (n)(3).
Source: LexisNexis