|
REFERENCE TITLE: sentencing; minimum and maximum terms |
|
State of Arizona House of Representatives Fifty-first Legislature Second Regular Session 2014
|
|
HB 2372 |
|
|
|
Introduced by Representative Gonzales
|
AN ACT
amending sections 13-105, 13-702, 13-703, 13-705 and 13-711, Arizona Revised Statutes; amending title 13, chapter 7, Arizona Revised Statutes, by adding section 13-716; amending sections 13-917, 13-1402, 13-1403, 13-3405, 13‑3419, 13-3553, 13-3994, 31-233, 31-412, 41-1604.11 and 41-1604.13, Arizona Revised Statutes; relating to sentencing.
(TEXT OF BILL BEGINS ON NEXT PAGE)
Be it enacted by the Legislature of the State of Arizona:
Section 1. Section 13-105, Arizona Revised Statutes, is amended to read:
13-105. Definitions
In this title, unless the context otherwise requires:
1. "Absconder" means a probationer who has moved from the probationer's primary residence without permission of the probation officer, who cannot be located within ninety days of the previous contact and against whom a petition to revoke has been filed in the superior court alleging that the probationer's whereabouts are unknown. A probationer is no longer deemed an absconder when the probationer is voluntarily or involuntarily returned to probation service.
2. "Act" means a bodily movement.
3. "Benefit" means anything of value or advantage, present or prospective.
4. "Calendar year" means three hundred sixty‑five days' actual time served without release, suspension or commutation of sentence, probation, pardon or parole, work furlough or release from confinement on any other basis.
5. "Community supervision" means that portion of a felony sentence that is imposed by the court pursuant to section 13‑603, subsection I and that is served in the community after completing a period of imprisonment or served in prison in accordance with section 41‑1604.07.
6. "Conduct" means an act or omission and its accompanying culpable mental state.
7. "Crime" means a misdemeanor or a felony.
8. "Criminal street gang" means an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the commission, attempted commission, facilitation or solicitation of any felony act and that has at least one individual who is a criminal street gang member.
9. "Criminal street gang member" means an individual to whom at least two of the following seven criteria that indicate criminal street gang membership apply:
(a) Self‑proclamation.
(b) Witness testimony or official statement.
(c) Written or electronic correspondence.
(d) Paraphernalia or photographs.
(e) Tattoos.
(f) Clothing or colors.
(g) Any other indicia of street gang membership.
10. "Culpable mental state" means intentionally, knowingly, recklessly or with criminal negligence as those terms are defined in this paragraph:
(a) "Intentionally" or "with the intent to" means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.
(b) "Knowingly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person's conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
(c) "Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but who is unaware of such risk solely by reason of voluntary intoxication also acts recklessly with respect to such risk.
(d) "Criminal negligence" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that the failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.
11. "Dangerous drug" means dangerous drug as defined in section 13‑3401.
12. "Dangerous instrument" means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing death or serious physical injury.
13. "Dangerous offense" means an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person.
14. "Deadly physical force" means force that is used with the purpose of causing death or serious physical injury or in the manner of its use or intended use is capable of creating a substantial risk of causing death or serious physical injury.
15. "Deadly weapon" means anything designed for lethal use, including a firearm.
16. "Economic loss" means any loss incurred by a person as a result of the commission of an offense. Economic loss includes lost interest, lost earnings and other losses that would not have been incurred but for the offense. Economic loss does not include losses incurred by the convicted person, damages for pain and suffering, punitive damages or consequential damages.
17. "Enterprise" includes any corporation, association, labor union or other legal entity.
18. "Felony" means an offense for which a sentence to a term of imprisonment in the custody of the state department of corrections is authorized by any law of this state.
19. "Firearm" means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other weapon that will or is designed to or may readily be converted to expel a projectile by the action of expanding gases, except that it does not include a firearm in permanently inoperable condition.
20. "Government" means the state, any political subdivision of the state or any department, agency, board, commission, institution or governmental instrumentality of or within the state or political subdivision.
21. "Government function" means any activity that a public servant is legally authorized to undertake on behalf of a government.
22. "Historical prior felony conviction" means:
(a) Any prior felony conviction for which the offense of conviction either:
(i) Mandated a term of imprisonment except for a violation of chapter 34 of this title involving a drug below the threshold amount.
(ii) Involved a dangerous offense.
(iii) Involved the illegal control of a criminal enterprise.
(iv) Involved aggravated driving under the influence of intoxicating liquor or drugs.
(v) Involved any dangerous crime against children as defined in section 13‑705.
(b) Any class 2 or 3
felony, except the offenses any offense listed in
subdivision (a) of this paragraph, that was committed within the ten years
immediately preceding the date of the present offense. Any time spent on
absconder status while on probation, on escape status or incarcerated is
excluded in calculating if the offense was committed within the preceding ten
years. If a court determines a person was not on absconder status while on
probation or escape status, that time is not excluded. For the
purposes of this subdivision, "escape" means:
(i) A departure from custody or from a juvenile secure care facility, a juvenile detention facility or an adult correctional facility in which the person is held or detained, with knowledge that the departure is not permitted, or the failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period.
(ii) A failure to report as ordered to custody or detention to begin serving a term of incarceration.
(c) Any class 4, 5 or 6 felony, except the offenses listed in subdivision (a) of this paragraph, that was committed within the five years immediately preceding the date of the present offense. Any time spent on absconder status while on probation, on escape status or incarcerated is excluded in calculating if the offense was committed within the preceding five years. If a court determines a person was not on absconder status while on probation or escape status, that time is not excluded. For the purposes of this subdivision, "escape" has the same meaning prescribed in subdivision (b) of this paragraph.
(d) Any felony conviction that is a third or more prior felony conviction.
(e) Any offense
committed outside the jurisdiction of this state that was punishable by that
jurisdiction as a felony, and that was committed
within the five years immediately preceding the date of the present offense.
Any time spent on absconder status while on probation, on escape status or
incarcerated is excluded in calculating if the offense was committed within the
preceding five years. If a court determines a person was not on
absconder status while on probation or escape status, that time is not
excluded. For the purposes of this subdivision, "escape"
has the same meaning prescribed in subdivision (b) of this paragraph.
(f) Any offense committed outside the jurisdiction of this state that involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of death or serious physical injury and that was punishable by that jurisdiction as a felony. A person who has been convicted of a felony weapons possession violation in any court outside the jurisdiction of this state that would not be punishable as a felony under the laws of this state is not subject to this paragraph.
23. "Human smuggling organization" means an ongoing formal or informal association of persons in which members or associates individually or collectively engage in the smuggling of human beings.
24. "Intoxication" means any mental or physical incapacity resulting from use of drugs, toxic vapors or intoxicating liquors.
25. "Misdemeanor" means an offense for which a sentence to a term of imprisonment other than to the custody of the state department of corrections is authorized by any law of this state.
26. "Narcotic drug" means narcotic drugs as defined in section 13‑3401.
27. "Offense" or "public offense" means conduct for which a sentence to a term of imprisonment or of a fine is provided by any law of the state in which it occurred or by any law, regulation or ordinance of a political subdivision of that state and, if the act occurred in a state other than this state, it would be so punishable under the laws, regulations or ordinances of this state or of a political subdivision of this state if the act had occurred in this state.
28. "Omission" means the failure to perform an act as to which a duty of performance is imposed by law.
29. "Peace officer" means any person vested by law with a duty to maintain public order and make arrests and includes a constable.
30. "Person" means a human being and, as the context requires, an enterprise, a public or private corporation, an unincorporated association, a partnership, a firm, a society, a government, a governmental authority or an individual or entity capable of holding a legal or beneficial interest in property.
31. "Petty offense" means an offense for which a sentence of a fine only is authorized by law.
32. "Physical force" means force used upon or directed toward the body of another person and includes confinement, but does not include deadly physical force.
33. "Physical injury" means the impairment of physical condition.
34. "Possess" means knowingly to have physical possession or otherwise to exercise dominion or control over property.
35. "Possession" means a voluntary act if the defendant knowingly exercised dominion or control over property.
36. "Preconviction custody" means the confinement of a person in a jail in this state or another state after the person is arrested for or charged with a felony offense.
37. "Prior felony conviction" means any felony conviction that is entered as of record before the commission of a new offense.
37. 38. "Property"
means anything of value, tangible or intangible.
38. 39. "Public
servant":
(a) Means any officer or employee of any branch of government, whether elected, appointed or otherwise employed, including a peace officer, and any person participating as an advisor or consultant or otherwise in performing a governmental function.
(b) Does not include jurors or witnesses.
(c) Includes those who have been elected, appointed, employed or designated to become a public servant although not yet occupying that position.
39. 40. "Serious
physical injury" includes physical injury that creates a reasonable risk
of death, or that causes serious and permanent disfigurement, serious
impairment of health or loss or protracted impairment of the function of any
bodily organ or limb.
40. 41. "Unlawful"
means contrary to law or, where the context so requires, not permitted by law.
41. 42. "Vehicle"
means a device in, upon or by which any person or property is, may be or could
have been transported or drawn upon a highway, waterway or airway, excepting
devices moved by human power or used exclusively upon stationary rails or
tracks.
42. 43. "Voluntary
act" means a bodily movement performed consciously and as a result of
effort and determination.
43. 44. "Voluntary
intoxication" means intoxication caused by the knowing use of drugs, toxic
vapors or intoxicating liquors by a person, the tendency of which to cause
intoxication the person knows or ought to know, unless the person introduces
them pursuant to medical advice or under such duress as would afford a defense
to an offense.
Sec. 2. Section 13-702, Arizona Revised Statutes, is amended to read:
13-702. First time felony offenders; sentencing; definition
A. Unless a specific sentence is otherwise provided, the term of imprisonment for a first felony offense shall be the presumptive sentence determined pursuant to subsection D B of this section. Except for those felonies involving a dangerous offense or if a specific sentence is otherwise provided, the court may increase or reduce the presumptive sentence within the ranges set by subsection D B of this section. Any reduction or increase shall be based on the aggravating and mitigating circumstances listed in section 13‑701, subsections D and E and shall be within the ranges prescribed in subsection D B of this section.
B. If a person is convicted of a felony without having previously been convicted of any felony and if at least two of the aggravating factors listed in section 13‑701, subsection D apply, the court may increase the maximum term of imprisonment otherwise authorized for that offense to an aggravated term. If a person is convicted of a felony without having previously been convicted of any felony and if the court finds at least two mitigating factors listed in section 13-701, subsection E apply, the court may decrease the minimum term of imprisonment otherwise authorized for that offense to a mitigated term.
C. The aggravated or mitigated term imposed pursuant to subsection D of this section may be imposed only if at least two of the aggravating circumstances are found beyond a reasonable doubt to be true by the trier of fact or are admitted by the defendant, except that an aggravating circumstance under section 13‑701, subsection D, paragraph 11 shall be found to be true by the court, or in mitigation of the crime are found to be true by the court, on any evidence or information introduced or submitted to the court or the trier of fact before sentencing or any evidence presented at trial, and factual findings and reasons in support of these findings are set forth on the record at the time of sentencing.
D. B. The term of imprisonment for a presumptive, minimum, or maximum, mitigated or aggravated sentence shall be within the range prescribed under this subsection. The terms are as follows:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
Class 2 3 years 4 years 5 years 10 years 12.5 years
Class 3 2 years 2.5 years 3.5 years 7 years 8.75 years
Class 4 1 year 1.5 years 2.5 years 3 years 3.75 years
Class 5 .5 years .75 years 1.5 years 2 years 2.5 years
Class 6 .33 years .5 years 1 year 1.5 years 2 years
E. C. The court shall inform all of the parties before sentencing occurs of its intent to increase or decrease a sentence to the aggravated maximum or mitigated minimum sentence pursuant to this section. If the court fails to inform the parties, a party waives its right to be informed unless the party timely objects at the time of sentencing.
F. D. For the purposes of this section, "trier of fact" means a jury, unless the defendant and the state waive a jury in which case the trier of fact means the court.
Sec. 3. Section 13-703, Arizona Revised Statutes, is amended to read:
13-703. Repetitive offenders; sentencing
A. A person shall be
sentenced as a category one repetitive offender if the person is convicted of two three
felony offenses that were not committed on the same occasion but that
either are consolidated for trial purposes or are not historical prior felony
convictions.
B. A person shall be sentenced as a category two repetitive offender if the person either:
1. Is convicted of three four
or more felony offenses that were not committed on the same occasion but
that either are consolidated for trial purposes or are not historical prior
felony convictions.
2. Except as provided in section 13‑704 or 13‑705, is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has one historical prior felony conviction.
C. Except as provided in section 13‑704 or 13‑705, a person shall be sentenced as a category three repetitive offender if the person is at least eighteen years of age or has been tried as an adult and stands convicted of a felony and has two or more historical prior felony convictions.
D. The presumptive term set by this section may be aggravated or mitigated within the range under this section pursuant to section 13‑701, subsections C, D and E.
E. If
a person is sentenced as a category one repetitive offender pursuant to
subsection A of this section and if at least two aggravating circumstances
listed in section 13‑701, subsection D apply or at least two mitigating
circumstances listed in section 13‑701, subsection E apply, the court may
impose a mitigated or aggravated sentence pursuant to subsection H of this
section.
F. If
a person is sentenced as a category two repetitive offender pursuant to
subsection B of this section and if at least two aggravating circumstances
listed in section 13‑701, subsection D apply or at least two mitigating
circumstances listed in section 13‑701, subsection E apply, the court may
impose a mitigated or aggravated sentence pursuant to subsection I of this
section.
G. If
a person is sentenced as a category three repetitive offender pursuant to
subsection C of this section and at least two aggravating circumstances listed
in section 13‑701, subsection D or at least two mitigating circumstances
listed in section 13‑701, subsection E apply, the court may impose a
mitigated or aggravated sentence pursuant to subsection J of this section.
H. E. A category one
repetitive offender shall be sentenced within the following ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
Class 2 3 years 4 years 5 years 10 years 12.5 years
Class 3 2 years 2.5 years 3.5 years 7 years 8.75 years
Class 4 1 years 1.5 years 2.5
years 3 years 3.75
years
Class 5 .5 years .75 years 1.5
years 2 years 2.5 years
Class 6 .25 years .5 years 1
year 1.5 years 2 years
I. F. A category two
repetitive offender shall be sentenced within the following ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
Class 2 4.5 years 6 years 9.25 years 18.5 years 23 years
Class 3 3.25 years 4.5 years 6.5 years 13 years 16.25 years
Class 4 2.25 years 3 years 4.5
years 6 years 7.5 years
Class 5 1 year 1.5 years 2.25 years 3 years 3.75 years
Class 6 .75 years 1 year 1.75 years 2.25 years 2.75 years
J. G. A
category three repetitive offender shall be sentenced within the following
ranges:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
Class 2 10.5 years 14 years 15.75
years 28 years 35 years
Class 3 7.5 years 10 years 11.25
years 20 years 25 years
Class 4 6 years 8 years 10
years 12 years 15 years
Class 5 3 years 4 years 5
years 6 years 7.5 years
Class 6 2.25 years 3 years 3.75
years 4.5 years 5.75 years
K. The
aggravated or mitigated term imposed pursuant to subsection H, I or J of this
section may be imposed only if at least two of the aggravating circumstances
are found beyond a reasonable doubt to be true by the trier of fact or are
admitted by the defendant, except that an aggravating circumstance under
section 13‑701, subsection D, paragraph 11 shall be found to be true by
the court, or in mitigation of the crime are found to be true by the court, on
any evidence or information introduced or submitted to the court or the trier
of fact before sentencing or any evidence presented at trial, and factual
findings and reasons in support of these findings are set forth on the record
at the time of sentencing.
L. H. Convictions
for two or more offenses committed on the same occasion shall be counted as
only one conviction for the purposes of subsection B, paragraph 2 and
subsection C of this section.
M. I. For the
purposes of subsection B, paragraph 2 and subsection C of this section, a
person who has been convicted in any court outside the jurisdiction of this
state of an offense that was punishable by that jurisdiction as a felony is
subject to this section. A person who has been convicted as an adult
of an offense punishable as a felony under the provisions of any prior code in
this state or the jurisdiction in which the offense was committed is subject to
this section. A person who has been convicted of a felony weapons possession
violation in any court outside the jurisdiction of this state that would not be
punishable as a felony under the laws of this state is not subject to this
section.
N. J. The penalties
prescribed by this section shall be substituted for the penalties otherwise
authorized by law if an allegation of prior conviction is charged in the
indictment or information and admitted or found by the court. The release
provisions prescribed by this section shall not be substituted for any
penalties required by the substantive offense or a provision of law that
specifies a later release or completion of the sentence imposed before
release. The court shall allow the allegation of a prior conviction at any
time before the date the case is actually tried unless the allegation is filed
fewer than twenty days before the case is actually tried and the court finds on
the record that the person was in fact prejudiced by the untimely filing and
states the reasons for these findings. If the allegation of a prior conviction
is filed, the state must make available to the person a copy of any material or
information obtained concerning the prior conviction. The charge of previous
conviction shall not be read to the jury. For the purposes of this subsection,
"substantive offense" means the felony offense that the trier of fact
found beyond a reasonable doubt the person committed. Substantive offense does
not include allegations that, if proven, would enhance the sentence of
imprisonment or fine to which the person otherwise would be subject.
O. K. A person who
is sentenced pursuant to this section is not eligible for suspension of
sentence, probation, pardon or release from confinement on any basis, except as
specifically authorized by section 31‑233, subsection A or B, until the
sentence imposed by the court has been served, the person is eligible for
release pursuant to section 41‑1604.07 or the sentence is commuted.
P. L. The court
shall inform all of the parties before sentencing occurs of its intent to
impose an aggravated a maximum or mitigated minimum sentence pursuant to subsection H, I or J E, f or G of this section. If the court fails to inform the
parties, a party waives its right to be informed unless the party timely
objects at the time of sentencing.
Q. M. The court in
imposing a sentence shall consider the evidence and opinions presented by the
victim or the victim's immediate family at any aggravation or mitigation
proceeding or in the presentence report.
Sec. 4. Section 13-705, Arizona Revised Statutes, is amended to read:
13-705. Dangerous crimes against children; sentences; definitions
A. A person who is at least eighteen years of age and who is convicted of a dangerous crime against children in the first degree involving sexual assault of a minor who is twelve years of age or younger or sexual conduct with a minor who is twelve years of age or younger shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served thirty‑five years or the sentence is commuted. This subsection does not apply to masturbatory contact.
B. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving attempted first degree murder of a minor who is under twelve years of age, second degree murder of a minor who is under twelve years of age, sexual assault of a minor who is under twelve years of age, sexual conduct with a minor who is under twelve years of age or manufacturing methamphetamine under circumstances that cause physical injury to a minor who is under twelve years of age may be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served thirty‑five years or the sentence is commuted. If a life sentence is not imposed pursuant to this subsection, the person shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
13 years 20 years 27 years
C. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving attempted first degree murder of a minor who is twelve, thirteen or fourteen years of age, second degree murder of a minor who is twelve, thirteen or fourteen years of age, sexual assault of a minor who is twelve, thirteen or fourteen years of age, taking a child for the purpose of prostitution, child prostitution, sexual conduct with a minor who is twelve, thirteen or fourteen years of age, continuous sexual abuse of a child, sex trafficking of a minor who is under fifteen years of age or manufacturing methamphetamine under circumstances that cause physical injury to a minor who is twelve, thirteen or fourteen years of age or involving or using minors in drug offenses shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
13 years 20 years 27 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
23 years 30 years 37 years
D. Except as otherwise provided in this section, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the first degree involving aggravated assault, molestation of a child, commercial sexual exploitation of a minor, sexual exploitation of a minor, aggravated luring a minor for sexual exploitation, child abuse or kidnapping shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
10 years 17 years 24 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows:
Minimum Presumptive Maximum
21 years 28 years 35 years
E. Except as otherwise provided in this section, if a person is at least eighteen years of age or has been tried as an adult and is convicted of a dangerous crime against children involving luring a minor for sexual exploitation or unlawful age misrepresentation and is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
5 years 10 years 15 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
8 years 15 years 22 years
F. Except as otherwise provided in this section, if a person is at least eighteen years of age or has been tried as an adult and is convicted of a dangerous crime against children involving sexual abuse or bestiality under section 13‑1411, subsection A, paragraph 2 and is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
2.5 years 5 years 7.5 years
A person who has been previously convicted of one predicate felony shall be sentenced to a term of imprisonment as follows and the person is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
8 years 15 years 22 years
G. The presumptive sentences prescribed in subsections B, C and D of this section or subsections E and F of this section if the person has previously been convicted of a predicate felony may be increased or decreased pursuant to section 13‑701, subsections C, D and E.
H. Except as provided in subsection F of this section, a person who is sentenced for a dangerous crime against children in the first degree pursuant to this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served or commuted.
I. A person who is convicted of any dangerous crime against children in the first degree pursuant to subsection C or D of this section and who has been previously convicted of two or more predicate felonies shall be sentenced to life imprisonment and is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served not fewer than thirty‑five years or the sentence is commuted.
J. Notwithstanding chapter 10 of this title, a person who is at least eighteen years of age or who has been tried as an adult and who is convicted of a dangerous crime against children in the second degree pursuant to subsection B, C or D of this section is guilty of a class 3 felony and if the person is sentenced to a term of imprisonment, the term of imprisonment is as follows and the person is not eligible for release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted:
Minimum Presumptive Maximum
5 years 10 years 15 years
K. A person who is convicted of any dangerous crime against children in the second degree and who has been previously convicted of one or more predicate felonies is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
L. Section 13‑704, subsection J and section 13‑707, subsection B apply to the determination of prior convictions.
M. The sentence imposed on a person by the court for a dangerous crime against children under subsection D of this section involving child molestation or sexual abuse pursuant to under subsection F of this section may be served concurrently with other sentences if the offense involved only one victim. The sentence imposed on a person for any other dangerous crime against children in the first or second degree shall be consecutive to any other sentence imposed on the person at any time, including child molestation and sexual abuse of the same victim.
N. A dangerous crime against children under subsection D of this section involving sexual exploitation of a minor pursuant to section 13-3553, subsection A, paragraph 3 may be served concurrently with other sentences imposed at any other time.
N. O. In this section, for purposes of punishment an unborn child shall be treated like a minor who is under twelve years of age.
O. P. A dangerous crime against children is in the first degree if it is a completed offense and is in the second degree if it is a preparatory offense, except attempted first degree murder is a dangerous crime against children in the first degree.
P. Q. For the purposes of this section:
1. "Dangerous crime against children" means any of the following that is committed against a minor who is under fifteen years of age:
(a) Second degree murder.
(b) Aggravated assault resulting in serious physical injury or involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument.
(c) Sexual assault.
(d) Molestation of a child.
(e) Sexual conduct with a minor.
(f) Commercial sexual exploitation of a minor.
(g) Sexual exploitation of a minor.
(h) Child abuse as prescribed in section 13‑3623, subsection A, paragraph 1.
(i) Kidnapping.
(j) Sexual abuse.
(k) Taking a child for the purpose of prostitution as prescribed in section 13‑3206.
(l) Child prostitution as prescribed in section 13‑3212.
(m) Involving or using minors in drug offenses.
(n) Continuous sexual abuse of a child.
(o) Attempted first degree murder.
(p) Sex trafficking.
(q) Manufacturing methamphetamine under circumstances that cause physical injury to a minor.
(r) Bestiality as prescribed in section 13‑1411, subsection A, paragraph 2.
(s) Luring a minor for sexual exploitation.
(t) Aggravated luring a minor for sexual exploitation.
(u) Unlawful age misrepresentation.
2. "Predicate felony" means any felony involving child abuse pursuant to section 13‑3623, subsection A, paragraph 1, a sexual offense, conduct involving the intentional or knowing infliction of serious physical injury or the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument, or a dangerous crime against children in the first or second degree.
Sec. 5. Section 13-711, Arizona Revised Statutes, is amended to read:
13-711. Consecutive terms of imprisonment
A. Except as otherwise provided by law, if multiple sentences of imprisonment are imposed on a person at the same time, the sentence or sentences imposed by the court shall determine if the sentences run consecutively unless the court expressly directs otherwise, in which case or concurrently. The court shall set forth on the record the reason for its sentence.
B. Notwithstanding subsection A, if a person is subject to an undischarged term of imprisonment and is sentenced to an additional term of imprisonment for a felony offense that is committed while the person is under the jurisdiction of the state department of corrections, the sentence imposed by the court shall run consecutively to the undischarged term of imprisonment.
Sec. 6. Title 13, chapter 7, Arizona Revised Statutes, is amended by adding section 13-716, to read:
13-716. Probation revocation; imprisonment; drug offenses
Notwithstanding section 13-702, if a person is placed on probation for an offense listed in chapter 34 of this title and the person's probation is revoked for a violation not involving a criminal offense, the court may impose a minimum term of imprisonment of one year or the minimum term applicable to that offense, whichever is shorter.
Sec. 7. Section 13-917, Arizona Revised Statutes, is amended to read:
13-917. Modification of supervision
A. The adult probation officer shall periodically examine the needs of each person granted intensive probation and the risks of modifying the level of supervision of the person. The court may at any time modify the level of supervision of a person granted intensive probation, or may transfer the person to supervised probation or may terminate the period of intensive probation pursuant to section 13‑901, subsection E.
B. The court may issue a warrant for the arrest of a person granted intensive probation. If the person commits an additional offense or violates a condition of probation, the court may revoke intensive probation at any time before the expiration or termination of the period of intensive probation. If a petition to revoke the period of intensive probation is filed and the court finds that the person has committed an additional felony offense or has violated a condition of intensive probation which poses a serious threat or danger to the community, the court shall revoke the period of intensive probation and impose a term of imprisonment as authorized by law. If the court finds that the person has violated any other condition of intensive probation, it shall modify the conditions of intensive probation as appropriate or shall revoke the period of intensive probation and impose a term of imprisonment as authorized by law.
C. The court shall notify the prosecuting attorney, and the victim on request, of any proposed modification of a person's intensive probation if that modification will substantially affect the person's contact with or safety of the victim or if the modification involves restitution or incarceration status.
Sec. 8. Section 13-1402, Arizona Revised Statutes, is amended to read:
13-1402. Indecent exposure; exception; classification
A. A person commits indecent exposure if he or she exposes his or her genitals or anus or she exposes the areola or nipple of her breast or breasts and another person is present, and the defendant is reckless about whether the other person, as a reasonable person, would be offended or alarmed by the act.
B. Indecent exposure does not include an act of breast-feeding by a mother.
C. Indecent exposure to a person who is fifteen or more years of age is a class 1 misdemeanor, except that it is a class 6 felony if the defendant has two or more prior convictions for a violation of this section or has one or more prior convictions for a violation of section 13‑1406. Indecent exposure to a person who is under fifteen years of age is a class 6 felony.
D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13‑1403 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age is guilty of a class 3 felony and shall be sentenced to a term of imprisonment as follows:
Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
6 years 8 years 10 years 12 years 15 years
E. The presumptive term imposed pursuant to subsection D of this section may be mitigated or aggravated pursuant to section 13‑701, subsections D and E.
Sec. 9. Section 13-1403, Arizona Revised Statutes, is amended to read:
13-1403. Public sexual indecency; public sexual indecency to a minor; classification
A. A person commits public sexual indecency by intentionally or knowingly engaging in any of the following acts, if another person is present, and the defendant is reckless about whether such other person, as a reasonable person, would be offended or alarmed by the act:
1. An act of sexual contact.
2. An act of oral sexual contact.
3. An act of sexual intercourse.
4. An act of bestiality.
B. A person commits public sexual indecency to a minor if the person intentionally or knowingly engages in any of the acts listed in subsection A of this section and such person is reckless about whether a minor who is under fifteen years of age is present.
C. Public sexual indecency is a class 1 misdemeanor. Public sexual indecency to a minor is a class 5 felony.
D. A person who is convicted of a felony violation of this section and who has two or more historical prior felony convictions for a violation of this section or section 13‑1402 involving indecent exposure or public sexual indecency to a minor who is under fifteen years of age shall be sentenced to a term of imprisonment as follows:
Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
6 years 8 years 10 years 12 years 15 years
E. The presumptive term imposed pursuant to subsection D of this section may be mitigated or aggravated pursuant to section 13‑701, subsections D and E.
Sec. 10. Section 13-3405, Arizona Revised Statutes, is amended to read:
13-3405. Possession, use, production, sale or transportation of marijuana; classification
A. A person shall not knowingly:
1. Possess or use marijuana.
2. Possess marijuana for sale.
3. Produce marijuana.
4. Transport for sale, import into this state or offer to transport for sale or import into this state, sell, transfer or offer to sell or transfer marijuana.
B. A person who violates:
1. Subsection A, paragraph 1 of this section involving an amount of marijuana not possessed for sale having a weight of less than two pounds is guilty of a class 6 felony.
2. Subsection A, paragraph 1 of this section involving an amount of marijuana not possessed for sale having a weight of at least two pounds but less than four pounds is guilty of a class 5 felony.
3. Subsection A, paragraph 1 of this section involving an amount of marijuana not possessed for sale having a weight of four pounds or more is guilty of a class 4 felony.
4. Subsection A, paragraph 2 of this section involving an amount of marijuana having a weight of less than two pounds is guilty of a class 4 felony.
5. Subsection A, paragraph 2 of this section involving an amount of marijuana having a weight of at least two pounds but not more than four pounds is guilty of a class 3 felony.
6. Subsection A, paragraph 2 of this section involving an amount of marijuana having a weight of more than four pounds is guilty of a class 2 felony.
7. Subsection A, paragraph 3 of this section involving an amount of marijuana having a weight of less than two pounds is guilty of a class 5 felony.
8. Subsection A, paragraph 3 of this section involving an amount of marijuana having a weight of at least two pounds but not more than four pounds is guilty of a class 4 felony.
9. Subsection A, paragraph 3 of this section involving an amount of marijuana having a weight of more than four pounds is guilty of a class 3 felony.
10. Subsection A, paragraph 4 of this section involving an amount of marijuana having a weight of less than two pounds is guilty of a class 3 felony.
11. Subsection A, paragraph 4 of this section involving an amount of marijuana having a weight of two pounds or more is guilty of a class 2 felony.
C. If the aggregate amount of marijuana involved in one offense or all of the offenses that are consolidated for trial equals or exceeds the statutory threshold amount, a person who is sentenced pursuant to subsection B, paragraph 5, 6, 8, 9 or 11 of this section is not eligible for suspension of sentence, probation, pardon or release from confinement on any basis until the person has served the sentence imposed by the court, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted.
D. In addition to any other penalty prescribed by this title, the court shall order a person who is convicted of a violation of any provision of this section to pay a fine of not less than seven hundred fifty dollars or three times the value as determined by the court of the marijuana involved in or giving rise to the charge, whichever is greater, and not more than the maximum authorized by chapter 8 of this title. A judge shall not suspend any part or all of the imposition of any fine required by this subsection.
E. A person who is convicted of a felony violation of any provision of this section for which probation or release before the expiration of the sentence imposed by the court is authorized is prohibited from using any marijuana, dangerous drug or narcotic drug except as lawfully administered by a practitioner and as a condition of any probation or release shall be required to submit to drug testing administered under the supervision of the probation department of the county or the state department of corrections as appropriate during the duration of the term of probation or before the expiration of the sentence imposed.
F. If the aggregate amount of marijuana involved in one offense or all of the offenses that are consolidated for trial is less than the statutory threshold amount, a person who is sentenced pursuant to subsection B, paragraph 4, 7 or 10 and who is granted probation by the court shall be ordered by the court that as a condition of probation the person perform not less than two hundred forty hours of community restitution with an agency or organization providing counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
G. If a person who is sentenced pursuant to subsection B, paragraph 1, 2 or 3 of this section is granted probation for a felony violation of this section, the court shall order that as a condition of probation the person perform not less than twenty‑four hours of community restitution with an agency or organization providing counseling, rehabilitation or treatment for alcohol or drug abuse, an agency or organization that provides medical treatment to persons who abuse controlled substances, an agency or organization that serves persons who are victims of crime or any other appropriate agency or organization.
H. If a person is granted probation for a misdemeanor violation of this section, the court shall order as a condition of probation that the person attend eight hours of instruction on the nature and harmful effects of narcotic drugs, marijuana and other dangerous drugs on the human system, and on the laws related to the control of these substances, or perform twenty‑four hours of community restitution.
Sec. 11. Section 13-3419, Arizona Revised Statutes, is amended to read:
13-3419. Multiple drug offenses not committed on the same occasion; sentencing
A. Except for a person convicted of possession offenses pursuant to section 13‑3405, subsection A, paragraph 1, section 13‑3407, subsection A, paragraph 1 or section 13‑3408, subsection A, paragraph 1, a person who is convicted of two or more offenses under this chapter that were not committed on the same occasion but that either are consolidated for trial purposes or are not historical prior felony convictions shall be sentenced for the second or subsequent offense pursuant to this section. The person shall not be eligible for suspension of sentence, probation, pardon or release from confinement on any basis except as specifically authorized by section 31‑233, subsection A or B until the sentence imposed by the court has been served, the person is eligible for release pursuant to section 41‑1604.07 or the sentence is commuted, except that a person sentenced pursuant to paragraph 1 of this subsection shall be eligible for probation. The presumptive term for paragraph 1, 2, 3 or 4 of this subsection may be aggravated under this section pursuant to section 13‑701, subsections C and D. The presumptive term for paragraph 1, 2 or 3 of this subsection may be mitigated within the range under this section pursuant to section 13‑701, subsections C and E. The terms are as follows:
1. For two offenses for which the aggregate amount of drugs involved in one offense or both of the offenses is less than the statutory threshold amount for the second offense:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
Class 2 3 years 4 years 5 years 10 years 12.5 years
Class 3 1.8 years 2.5 years 3.5 years 7 years 8.7 years
Class 4 1.1 years 1.5 years 2.5 years 3 years 3.7 years
Class 5 .5 years .75 years 1.5 years 2 years 2.5 years
2. For three or more offenses for which the aggregate amount of drugs involved in one offense or all of the offenses is less than the statutory threshold amount for any offense subsequent to the second offense:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
Class 2 3 years 4 years 5 years 10 years 12.5 years
Class 3 1.8 years 2.5 years 3.5 years 7 years 8.7 years
Class 4 1.1 years 1.5 years 2.5 years 3 years 3.7 years
Class 5 .5 years .75 years 1.5 years 2 years 2.5 years
3. For two offenses for which the aggregate amount of drugs involved in one offense or all of the offenses equals or exceeds the statutory threshold amount for the second offense:
Felony Mitigated Minimum Presumptive Maximum Aggravated
Minimum Maximum
Class 2 3 years 4 years 5 years 10 years 12.5 years
Class 3 1.8 years 2.5 years 3.5 years 7 years 8.7 years
Class 4 1.1 years 1.5 years 2.5 years 3 years 3.7 years
Class 5 .5 years .75 years 1.5 years 2 years 2.5 years
4. For three or more offenses for which the aggregate amount of drugs involved in one offense or all of the offenses equals or exceeds the statutory threshold amount for any offense subsequent to the second offense:
Felony Minimum Presumptive Maximum Aggravated
Maximum
Class 2 4 years 7 years 12 years 15 years
Class 3 2.5 years 5 years 9 years 11.2 years
Class 4 1.5 years 3 years 5 years 6.2 years
Class 5 .75 years 2.5 years 4 years 5 years
B. If the court increases or decreases a sentence pursuant to this section, the court shall state on the record the reasons for the increase or decrease.
C. The court shall inform all of the parties before the sentencing occurs of its intent to increase or decrease a sentence pursuant to this section. If the court fails to inform the parties, a party waives its right to be informed unless the party timely objects at the time of sentencing.
Sec. 12. Section 13-3553, Arizona Revised Statutes, is amended to read:
13-3553. Sexual exploitation of a minor; evidence; classification
A. A person commits sexual exploitation of a minor by knowingly:
1. Recording, filming, photographing, developing or duplicating any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.
2. Distributing, transporting, exhibiting, receiving, selling, purchasing, electronically transmitting, possessing or exchanging any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.
3. possessing any visual depiction in which a minor is engaged in exploitive exhibition or other sexual conduct.
B. If any visual depiction of sexual exploitation of a minor is admitted into evidence, the court shall seal that evidence at the conclusion of any grand jury proceeding, hearing or trial.
C. Sexual exploitation of a minor is a class 2 felony and if the minor is under fifteen years of age it is punishable pursuant to section 13‑705.
Sec. 13. Section 13-3994, Arizona Revised Statutes, is amended to read:
13-3994. Commitment; hearing; jurisdiction; definition
A. A person who is found guilty except insane pursuant to section 13‑502 shall be committed to a secure state mental health facility under the department of health services for a period of treatment.
B. If the criminal act of the person committed pursuant to subsection A of this section did not cause the death or serious physical injury of or the threat of death or serious physical injury to another person, the court shall set a hearing date within seventy‑five days after the person's commitment to determine if the person is entitled to release from confinement or if the person meets the standards for civil commitment pursuant to title 36, chapter 5. The court shall notify the medical director of the mental health facility, the attorney general, the county attorney, the victim and the attorney representing the person, if any, of the date of the hearing. Fourteen days before the hearing the director of the mental health facility shall submit to the court a report addressing the person's mental health and dangerousness.
C. At a hearing held pursuant to subsection B of this section:
1. If the person proves by clear and convincing evidence that the person no longer suffers from a mental disease or defect and is not dangerous, the court shall order the person's release and the person's commitment ordered pursuant to section 13‑502, subsection D shall terminate. Before determining to release a person pursuant to this paragraph, the court shall consider the entire criminal history of the person and shall not order the person's release if the court determines that the person has a propensity to reoffend.
2. If the court finds that the person still suffers from a mental disease or defect, may present a threat of danger to self or others, is gravely disabled, is persistently or acutely disabled or has a propensity to reoffend, it shall order the county attorney to institute civil commitment proceedings pursuant to title 36 and the person's commitment ordered pursuant to section 13‑502, subsection D shall terminate.
D. If the court finds that the criminal act of the person committed pursuant to subsection A of this section caused the death or serious physical injury of or the threat of death or serious physical injury to another person, the court shall place the person under the jurisdiction of the psychiatric security review board. The court shall state the beginning date, length and ending date of the board's jurisdiction over the person. The length of the board's jurisdiction over the person is equal to the sentence the person could have received pursuant to section 13‑707 or section 13‑751, subsection A or the presumptive sentence the defendant could have received pursuant to section 13‑702, subsection D B, section 13‑703, section 13‑704, section 13‑705, section 13-706, subsection A, section 13‑710 or section 13‑1406. In making this determination the court shall not consider the sentence enhancements for prior convictions under section 13‑703 or 13‑704. The court shall retain jurisdiction of all matters that are not specifically delegated to the psychiatric security review board for the duration of the presumptive sentence.
E. A person who is placed under the jurisdiction of the psychiatric security review board pursuant to subsection D of this section is not eligible for discharge from the board's jurisdiction until the board's jurisdiction over the person expires.
F. A person who is placed under the jurisdiction of the psychiatric security review board pursuant to subsection D of this section is not entitled to a hearing before the board earlier than one hundred twenty days after the person's initial commitment. A request for a subsequent release hearing may be made pursuant to subsection H of this section. After the hearing, the board may take one of the following actions:
1. If the psychiatric security review board finds that the person still suffers from a mental disease or defect and is dangerous, the board shall order that the person remain committed at the secure state mental health facility.
2. If the person proves by clear and convincing evidence that the person no longer suffers from a mental disease or defect and is not dangerous, the psychiatric security review board shall order the person's release. The person shall remain under the jurisdiction of the board. Before determining to release a person pursuant to this paragraph, the board shall consider the entire criminal history of the person and shall not order the person's release if the board determines that the person has a propensity to reoffend.
3. If the psychiatric security review board finds that the person still suffers from a mental disease or defect or that the mental disease or defect is in stable remission but the person is no longer dangerous, the board shall order the person's conditional release. The person shall remain under the board's jurisdiction. The board in conjunction with the state mental health facility and behavioral health community providers shall specify the conditions of the person's release. The board shall continue to monitor and supervise a person who is released conditionally. Before the conditional release of a person, a supervised treatment plan shall be in place, including the necessary funding to implement the plan.
4. If the person is sentenced pursuant to section 13‑704, section 13‑710 or section 13‑751, subsection A and the psychiatric security review board finds that the person no longer needs ongoing treatment for a mental disease and the person is dangerous or has a propensity to reoffend, the board shall order the person to be transferred to the state department of corrections for the remainder of the sentence imposed pursuant to section 13‑502, subsection D. The board shall consider the safety and protection of the public.
G. Within twenty days after the psychiatric security review board orders a person to be transferred to the state department of corrections, the person may file a petition for a judicial determination. The person shall serve a copy of the request on the attorney general. If the person files a petition for a judicial determination, the person shall remain in a state mental health facility pending the result of the judicial determination. The person requesting the judicial determination has the burden of proving the issues by clear and convincing evidence. The judicial determination is limited to the following issues:
1. Whether the person no longer needs ongoing treatment for a mental disease.
2. Whether the person is dangerous or has a propensity to reoffend.
H. A person who is placed under the jurisdiction of the psychiatric security review board pursuant to subsection D of this section may not seek a new release hearing earlier than twenty months after a prior release hearing, except that the medical director of the state mental health facility may request a new release hearing for a person under the jurisdiction of the psychiatric security review board at any time. The person shall not be held in confinement for more than two years without a hearing before the board to determine if the person should be released or conditionally released.
I. At any hearing for release or conditional release pursuant to this section:
1. Public safety and protection are primary.
2. The applicant has the burden of proof by clear and convincing evidence.
J. At least fifteen days before a hearing is scheduled to consider a person's release, or before the expiration of the board's jurisdiction over the person, the state mental health facility or supervising agency shall submit to the psychiatric security review board a report on the person's mental health. The psychiatric security review board shall determine whether to release the person or to order the county attorney to institute civil commitment proceedings pursuant to title 36.
K. The procedures for civil commitment govern the continued commitment of the person after the expiration of the jurisdiction of the psychiatric security review board.
L. Before a person is released or conditionally released, at least three of the five psychiatric security review board members shall vote for the release or conditional release.
M. If at any time while the person remains under the jurisdiction of the psychiatric security review board it appears to the board, the chairman or vice‑chairman of the board or the medical director of the state mental health facility that the person has failed to comply with the terms of the person's conditional release or that the mental health of the person has deteriorated, the board or the chairman or vice‑chairman of the board for good cause or the medical director of the state mental health facility may order that the person be returned to a secure state mental health facility for evaluation or treatment. A written order of the board, the chairman or vice‑chairman of the board or the medical director is sufficient warrant for any law enforcement officer to take the person into custody and to transport the person accordingly. Any sheriff or other peace officer shall execute the order and shall immediately notify the board of the person's return to the facility. Within twenty days after the person's return to a secure state mental health facility the board shall conduct a hearing and shall give notice within five days before the hearing of the time and place of the hearing to the person, the victim, the attorney representing the person, the county attorney and the attorney general.
N. The director of a facility that is providing treatment to a person on conditional release or any other person who is responsible for the supervision of the person may take the person or request that the person be taken into custody if there is reasonable cause to believe that the person's mental health has deteriorated to the point that the person's conditional release should be revoked and that the person is in need of immediate care, custody or treatment or that deterioration is likely because of noncompliance with a treatment program. A person who is taken into custody pursuant to this subsection shall be transported immediately to a secure state mental health facility and shall have the same rights as any person appearing before the psychiatric security review board.
O. Before the initial hearing or any other hearing before the psychiatric security review board on the release or conditional release of the person, the person, the attorney who is representing the person and the attorney general or county attorney who is representing the state may choose a psychiatrist licensed pursuant to title 32, chapter 13 or 17 or a psychologist licensed pursuant to title 32, chapter 19.1 to examine the person. All costs in connection with the examination shall be approved and paid by the county of the sentencing court. The written examination results shall be filed with the board and shall include an opinion as to:
1. The mental condition of the person.
2. Whether the person is dangerous.
P. Notwithstanding subsection O of this section, the board or the chairman of the board for good cause may order an independent mental health evaluation by a psychiatrist licensed pursuant to title 32, chapter 13 or 17 or a psychologist licensed pursuant to title 32, chapter 19.1. The written examination results shall be filed with the board pursuant to subsection O of this section.
Q. If a person is found guilty except insane pursuant to section 13‑502, the department of health services shall assume custody of the person within ten days after receiving the order committing the person pursuant to subsection A of this section. The Arizona state hospital shall collect census data for guilty except insane treatment programs to establish maximum capacity and the allocation formula required pursuant to section 36‑206, subsection D. If the Arizona state hospital reaches its funded capacity for forensic programs, the department of health services may defer the admission of the person found guilty except insane for up to an additional twenty days. The department of health services shall reimburse the county for the actual costs of each day the admission is deferred. If the department of health services is not able to admit the person found guilty except insane at the conclusion of the twenty day deferral period, the department of health services shall notify the sentencing court, the prosecutor and the defense counsel of this fact. On receipt of this notification, the prosecutor or the person's defense counsel may request a hearing to determine the likely length of time admission will continue to be deferred and whether any other action should be taken. On receipt of the request for hearing, the court shall set a hearing within ten days.
R. For the purposes of this section, "state mental health facility" means a secure state mental health facility under the department of health services.
Sec. 14. Section 31-233, Arizona Revised Statutes, is amended to read:
31-233. Order for removal; purposes; duration; continuous alcohol monitoring program; failure to return; classification
A. The director may authorize the temporary removal under custody from prison or any other institution for the detention of adults under the jurisdiction of the department of any inmate for the purpose of employing the inmate in any work directly connected with the administration, management or maintenance of the prison or institution in which the inmate is confined, for purposes of cooperating voluntarily in medical research that cannot be performed at the prison or institution, or for participating in community action activities directed toward delinquency prevention and community betterment programs. The removal shall not be for a period longer than one day.
B. Under specific rules established by the director for the selection of inmates, the director may also authorize furlough, temporary removal or temporary release of any inmate for compassionate leave, for the purpose of furnishing to the inmate medical treatment not available at the prison or institution, for purposes preparatory to a return to the community within ninety days of the inmate's release date as provided in subsection C of this section or for disaster aid, including local mutual aid and state emergencies. When an inmate is temporarily removed or temporarily released for a purpose preparatory to a return to the community or for compassionate leave, the director may require the inmate to reimburse the state, in whole or part, for expenses incurred by the state in connection with the inmate's temporary removal or release.
C. A furlough, temporary removal or release of an inmate for purposes preparatory to a return to the community pursuant to subsection B of this section shall be as follows:
1. Within ninety days of the inmate's release date if the inmate was sentenced for a serious offense or violent or aggravated felony as defined in section 13-706.
2. Within one hundred eighty days of the inmate's release date if the inmate was sentenced for an offense not listed in paragraph 1 of this subsection.
C. D. Under specific rules established by the director for the selection of inmates, the director also may authorize release under a continuous alcohol monitoring program for any inmate who is sentenced pursuant to section 28‑1383, subsection D or E and who is placed on probation. The director may require an inmate who is released under a continuous alcohol monitoring program to reimburse the state, in whole or part, for expenses incurred by the state in connection with the inmate's release.
D. E. An inmate who is released under a continuous alcohol monitoring program shall meet the following program eligibility requirements:
1. Serve an initial minimum term of twenty per cent of the inmate's term of incarceration.
2. Maintain compliance during the period of monitoring with all of the following requirements:
(a) At a minimum, once a day testing for the use of alcoholic beverages or drugs by a scientific method that is chosen by the director.
(b) Participation in an alcohol or drug program, or both. These programs shall be accredited by the department of health services.
(c) Prohibition of association with any person who is determined to be detrimental to the inmate's successful participation in the program.
(d) All other provisions of the inmate's sentence.
3. Any additional eligibility criteria that the director may impose.
E. F. Except if community supervision is waived pursuant to section 13‑603, subsection K, the department shall add the amount of time the director approves for the inmate's temporary release to the inmate's term of community supervision imposed by the court pursuant to section 13‑603. While the person is on temporary release the person is not on inmate status and is under the jurisdiction of the department until the terms of community supervision are met.
F. G. Any inmate who knowingly fails to return from furlough, temporary removal or temporary release granted under this section is guilty of a class 5 felony.
Sec. 15. Section 31-412, Arizona Revised Statutes, is amended to read:
31-412. Criteria for release on parole; release; custody of parolee; definition
A. If a prisoner is certified as eligible for parole pursuant to section 41‑1604.09 the board of executive clemency shall authorize the release of the applicant on parole if the applicant has reached the applicant's earliest parole eligibility date pursuant to section 41‑1604.09, subsection D and it appears to the board, in its sole discretion, that there is a substantial probability that the applicant will remain at liberty without violating the law and that the release is in the best interests of the state. The applicant shall thereupon be allowed to go on parole in the legal custody and under the control of the state department of corrections, until the board revokes the parole or grants an absolute discharge from parole or until the prisoner reaches the prisoner's individual earned release credit date pursuant to section 41‑1604.10. When the prisoner reaches the prisoner's individual earned release credit date the prisoner's parole shall be terminated and the prisoner shall no longer be under the authority of the board but shall be subject to revocation under section 41‑1604.10.
B. Notwithstanding subsection A of this section, the director of the state department of corrections may certify as eligible for parole any prisoner, regardless of the classification of the prisoner, who has reached the prisoner's parole eligibility date pursuant to section 41‑1604.09, subsection D, unless an increased term has been imposed pursuant to section 41‑1604.09, subsection F, for the sole purpose of parole to the custody of any other jurisdiction to serve a term of imprisonment imposed by the other jurisdiction or to stand trial on criminal charges in the other jurisdiction or for the sole purpose of parole to the custody of the state department of corrections to serve any consecutive term imposed on the prisoner. On review of an application for parole pursuant to this subsection the board may authorize parole if, in its discretion, parole appears to be in the best interests of the state.
C. A prisoner who is otherwise eligible for parole, who is not on home arrest or work furlough and who is currently serving a sentence for a conviction of a serious offense or conspiracy to commit or attempt to commit a serious offense shall not be granted parole or absolute discharge from imprisonment except by one of the following votes:
1. A majority affirmative vote if four or more members consider the action.
2. A unanimous affirmative vote if three members consider the action.
3. A unanimous affirmative vote if two members consider the action pursuant to section 31‑401, subsection I and the chairman concurs after reviewing the information considered by the two members.
D. The board, as a condition of parole, shall order a prisoner to make any court‑ordered restitution.
E. Payment of restitution by the prisoner in accordance with subsection D of this section shall be made through the clerk of the superior court in the county in which the prisoner was sentenced for the offense for which the prisoner has been imprisoned in the same manner as restitution is paid as a condition of probation. The clerk of the superior court shall report to the board monthly whether or not restitution has been paid for that month by the prisoner.
F. The board shall not disclose the address of the victim or the victim's immediate family to any party without the written consent of the victim or the victim's family.
G. For the purposes of this section, "serious offense" includes any of the following:
1. A serious offense as defined in section 13-706, subsection F, paragraph 1, subdivision (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k).
2. A dangerous crime against children as defined in section 13‑705. The citation of section 13-705 is not a necessary element for a serious offense designation.
3. A conviction under a prior criminal code for any offense that possesses reasonably equivalent offense elements as the offense elements that are listed under section 13-705, subsection P Q, paragraph 1 or section 13‑706, subsection F, paragraph 1.
Sec. 16. Section 41-1604.11, Arizona Revised Statutes, is amended to read:
41-1604.11. Order for removal; purposes; duration; work furlough; notice; failure to return; classification; applicability; definition
A. The director of the state department of corrections may authorize the temporary removal under custody from prison or any other institution for the detention of adults under the jurisdiction of the state department of corrections of any inmate for the purpose of employing that inmate in any work directly connected with the administration, management or maintenance of the prison or institution in which the inmate is confined, for purposes of cooperating voluntarily in medical research that cannot be performed at the prison or institution, or for participating in community action activities directed toward delinquency prevention and community betterment programs. The removal shall not be for a period longer than one day.
B. Under specific rules established by the director for the selection of inmates, the director may also authorize furlough, temporary removal or temporary release of any inmate for compassionate leave, for the purpose of furnishing to the inmate medical treatment not available at the prison or institution, for purposes preparatory to a return to the community within ninety days of the inmate's release date or for disaster aid, including local mutual aid and state emergencies. When an inmate is temporarily removed or temporarily released for a purpose preparatory to return to the community or for compassionate leave, the director may require the inmate to reimburse the state, in whole or part, for expenses incurred by the state in connection with the temporary removal or release.
C. The board of executive clemency, under specific rules established for the selection of inmates, if it appears to the board, in its sole discretion, that there is a substantial probability that the inmate will remain at liberty without violating the law and that the release is in the best interests of the state, may authorize the release of an inmate on work furlough if the inmate has served not less than six months of the sentence imposed by the court, is within twelve months of the inmate's parole eligibility date and has not been convicted of a sexual offense. The director shall provide information as the board requests concerning any inmate eligible for release on work furlough. The inmate shall not be released on work furlough unless the release is approved by the board.
D. An inmate who is otherwise eligible for work furlough pursuant to subsection C of this section, who is not on home arrest and who is currently serving a sentence for a conviction of a serious offense or conspiracy to commit or attempt to commit a serious offense shall not be granted work furlough except by one of the following votes:
1. A majority affirmative vote if four or more members of the board of executive clemency consider the action.
2. A unanimous affirmative vote if three members of the board of executive clemency consider the action.
3. A unanimous affirmative vote if two members of the board of executive clemency consider the action pursuant to section 31‑401, subsection I and the chairman of the board concurs after reviewing the information considered by the two members.
E. Before holding a hearing on the work furlough under consideration, the board, on request, shall notify and afford an opportunity to be heard to the presiding judge of the superior court in the county in which the inmate requesting a work furlough was sentenced, the prosecuting attorney, the director of the arresting law enforcement agency and the victim of the offense for which the inmate is incarcerated. The notice shall state the name of the inmate requesting the work furlough, the offense for which the inmate was sentenced, the length of the sentence and the date of admission to the custody of the state department of corrections. The notice to the victim shall also inform the victim of the victim's right to be present and submit a written report to the board expressing the victim's opinion concerning the inmate's release. No hearing concerning work furlough shall be held until fifteen days after the date of giving the notice. On mailing the notice, the board shall file a hard copy of the notice as evidence that notification was sent.
F. The board shall require that every inmate released on work furlough comply with the terms and conditions of release as the board may impose, including that the inmate be gainfully employed while on work furlough and that the inmate make restitution to the victim of the offense for which the inmate was incarcerated.
G. If the board finds that an inmate has failed to comply with the terms and conditions of release or that the best interests of this state would be served by revocation of an inmate's work furlough, the board may issue a warrant for retaking the inmate before the expiration of the inmate's maximum sentence. After return of the inmate, the board may revoke the inmate's work furlough after the inmate has been given an opportunity to be heard.
H. If the board denies the release of an inmate on work furlough or home arrest, it may prescribe that the inmate not be recommended again for release on work furlough or home arrest for a period of up to one year.
I. The director shall transmit a monthly report containing the name, date of birth, offense for which the inmate was sentenced, length of the sentence and date of admission to the state department of corrections of each inmate on work furlough or home arrest to the chairperson of the house of representatives judiciary committee or its successor committee and the chairperson of the senate judiciary committee or its successor committee. The director shall also submit a report containing this information for any inmate released on work furlough or home arrest within a jurisdiction to the county attorney, sheriff and chief of police for the jurisdiction in which the inmate is released on work furlough or home arrest.
J. Any inmate who knowingly fails to return from furlough, home arrest, work furlough or temporary removal or temporary release granted under this section is guilty of a class 5 felony.
K. At any given time if the director declares there is a shortage of beds available for inmates within the state department of corrections, the parole eligibility as set forth in sections 31‑411 and 41‑1604.09 may be suspended for any inmate who has served not less than six months of the sentence imposed by the court, who has not been previously convicted of a felony and who has been sentenced for a class 4, 5 or 6 felony, not involving a sexual offense, the use or exhibition of a deadly weapon or dangerous instrument or the infliction of serious physical injury pursuant to section 13-704, and the inmate shall be continuously eligible for parole, home arrest or work furlough.
L. Prisoners who have served at least one calendar year and who are serving a sentence for conviction of a crime committed on or after October 1, 1978, under section 13‑604, 13‑1406, 13‑1410, 13‑3406, 36‑1002.01, 36‑1002.02 or 36‑1002.03, and who are sentenced to the custody of the state department of corrections, may be temporarily released, according to the rules of the department, at the discretion of the director, one hundred eighty calendar days prior to expiration of the term imposed and shall remain under the control of the state department of corrections until expiration of the maximum sentence specified. If an offender released under this section or pursuant to section 31‑411, subsection B violates the rules, the offender may be returned to custody and shall be classified to a parole class as provided by the rules of the department.
M. This section applies only to persons who commit felony offenses before January 1, 1994.
N. For the purposes of this section, "serious offense" means any of the following:
1. A serious offense as defined in section 13-706, subsection F, paragraph 1, subdivision (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k).
2. A dangerous crime against children as defined in section 13-705. The citation of section 13-705 is not a necessary element for a serious offense designation.
3. A conviction under a prior criminal code for any offense that possesses reasonably equivalent offense elements as the offense elements that are listed under section 13-705, subsection P Q, paragraph 1 or section 13‑706, subsection F, paragraph 1.
Sec. 17. Section 41-1604.13, Arizona Revised Statutes, is amended to read:
41-1604.13. Home arrest; eligibility; victim notification; conditions; applicability; definitions
A. An inmate who has served not less than six months of the sentence imposed by the court is eligible for the home arrest program if the inmate:
1. Meets the following criteria:
(a) Was convicted of committing a class 4, 5 or 6 felony not involving a dangerous offense.
(b) Was not convicted of a sexual offense.
(c) Has not previously been convicted of any felony.
2. Violated parole by the commission of a technical violation that was not chargeable or indictable as a criminal offense.
3. Is eligible for work furlough.
4. Is eligible for parole pursuant to section 31‑412, subsection A.
B. The board of executive clemency shall determine which inmates are released to the home arrest program based on the criteria in subsection A of this section and based on a determination that there is a substantial probability that the inmate will remain at liberty without violating the law and that the release is in the best interests of the state after considering the offense for which the inmate is presently incarcerated, the prior record of the inmate, the conduct of the inmate while incarcerated and any other information concerning the inmate that is in the possession of the state department of corrections, including any presentence report. The board maintains the responsibility of revocation as applicable to all parolees.
C. An inmate who is otherwise eligible for home arrest, who is not on work furlough and who is currently serving a sentence for a conviction of a serious offense or conspiracy to commit or attempt to commit a serious offense shall not be granted home arrest except by one of the following votes:
1. A majority affirmative vote if four or more members of the board of executive clemency consider the action.
2. A unanimous affirmative vote if three members of the board of executive clemency consider the action.
3. A unanimous affirmative vote if two members of the board of executive clemency consider the action pursuant to section 31‑401, subsection I and the chairman of the board concurs after reviewing the information considered by the two members.
D. Home arrest is conditioned on the following:
1. Active electronic monitoring surveillance for a minimum term of one year or until eligible for general parole.
2. Participation in gainful employment or other beneficial activities.
3. Submission to alcohol and drug tests as mandated.
4. Payment of the electronic monitoring fee in an amount determined by the board of not less than one dollar per day and not more than the total cost of the electronic monitoring unless, after determining the inability of the inmate to pay the fee, the board requires payment of a lesser amount. The fees collected shall be returned to the department's home arrest program to offset operational costs of the program.
5. Remaining at the inmate's place of residence at all times except for movement out of the residence according to mandated conditions.
6. Adherence to any other conditions imposed by the court, board of executive clemency or supervising corrections officers.
7. Compliance with all other conditions of supervision.
8. Payment of a monthly home arrest supervision fee of at least sixty‑five dollars unless, after determining the inability of the inmate to pay the fee, the department requires payment of a lesser amount. The supervising corrections officer shall monitor the collection of the fee. Monies collected shall be deposited, pursuant to sections 35‑146 and 35‑147, in the community corrections enhancement fund established by section 31‑418.
9. Payment of a drug testing fee in an amount to be determined by the board and not to exceed the costs of the drug testing program. The fees collected pursuant to this paragraph by the department may only be used to offset the costs of the drug testing program.
E. Before holding a hearing on home arrest, the board on request shall notify and afford an opportunity to be heard to the presiding judge of the superior court in the county in which the inmate requesting home arrest was sentenced, the prosecuting attorney and the director of the arresting law enforcement agency. The board shall notify the victim of the offense for which the inmate is incarcerated. The notice shall state the name of the inmate requesting home arrest, the offense for which the inmate was sentenced, the length of the sentence and the date of admission to the custody of the state department of corrections. The notice to the victim shall also inform the victim of the victim's right to be present and to submit a written report to the board expressing the victim's opinion concerning the inmate's release. No hearing concerning home arrest may be held until fifteen days after the date of giving the notice. On mailing the notice, the board shall file a hard copy of the notice as evidence that notification was sent.
F. An inmate who is placed on home arrest is on inmate status, is subject to all the limitations of rights and movement and is entitled only to due process rights of return.
G. If an inmate violates a condition of home arrest that poses any threat or danger to the community, or commits an additional felony offense, the board shall revoke the home arrest and return the inmate to the custody of the state department of corrections to complete the term of imprisonment as authorized by law.
H. The ratio of supervising corrections officers to supervisees in the home arrest program shall be no greater than one officer for every twenty‑five supervisees.
I. The board shall determine when the supervisee is eligible for transfer to the regular parole program pursuant to section 31‑411.
J. This section applies only to persons who commit felony offenses before January 1, 1994.
K. For the purposes of this section:
1. "Dangerous offense" has the same meaning prescribed in section 13‑105.
2. "Serious offense" includes any of the following:
(a) A serious offense as defined in section 13‑706, subsection F, paragraph 1, subdivision (a), (b), (c), (d), (e), (g), (h), (i), (j) or (k).
(b) A dangerous crime against children as defined in section 13‑705. The citation of section 13‑705 is not a necessary element for a serious offense designation.
(c) A conviction under a
prior criminal code for any offense that possesses reasonably equivalent
offense elements as the offense elements that are listed under section 13‑705,
subsection P Q, paragraph 1 or section 13‑706,
subsection F, paragraph 1.