SB 1659

Generally, present law prohibits the death penalty or a sentence of life imprisonment without possibility of parole to be imposed, except upon a unanimous finding that the state has proven beyond a reasonable doubt the existence of one or more aggravating circumstances . This bill expands the list of s uch aggravating circumstances by adding all of the following circumstances:  T he defendant committed aggravated rape of a child against a victim who was younger than four at the time of the commission of the offense .  The defendant committed incest in the commission of the offense .  At the time of the commission of the offense, the defendant was in a position of trust, or had supervisory, disciplinary, or custodial authority over the victim by virtue of the defendant's legal, professional, or occupational status and used the position of trust or authority to accomplish the offense .  At the time of the commission of the offense, the defendant was previously convicted in this state or another jurisdiction of one or more felony or misdemeanor offenses, other than the present charge, the statutory elements of which involve unlawful sexual contact with a minor .  At the time of the commission of the offense, the defendant was required to register as a sexual offender, violent sexual offender, or violent juvenile sexual offender; serving a sentence of community supervision for life; or subject to an equivalent sexual offender registration or monitoring requirement in another jurisdiction .  The defendant filmed, recorded, photographed, live-streamed, or otherwise transmitted a video or photograph of the offense .  The defendant utilized an intoxicant, controlled substance, or other substance to influence the victim's central nervous system in the commission of the offense .  The defendant used a deadly weapon in the commission of the offense if the defendant is being sentenced for rape of a child or aggravated rape of a child .  At the time of the commission of the offense, the defendant knew or reasonably should have known that the victim was mentally defective, mentally incapacitated, or physically helpless .  During the commission of the offense, the defendant's actions were especially heinous, atrocious, or cruel or involved the infliction of torture to the victim .  The defendant provided remuneration to the victim or another for the purpose of gaining access to the victim, or to the victim in return for the victim's silence .  During the proceeding which resulted in the defendant's conviction for rape of a child or aggravated rape of a child, the defendant was also convicted of additional counts of rape of a child, aggravated rape of a child, aggravated sexual battery, or continuous sexual abuse of a child involving one or more other victims. MITIGATING CIRCUMSTANCES In arriving at the punishment, present law requires the jury to consider any mitigating circumstances , including certain outlined mitigating circumstances. One mitigating circumstance that the jury must consider is whether the victim was a participant in the defendant's conduct or consented to the act. This bill clarifies that if the defendant was convicted of rape of a child or aggravated rape of a child, then the victim's participation or consen t in the defendant's conduct is not a mitigating factor. SEPARATE SENTENCING PROCEEDING S In a case of first degree murder or rape of a child in which the state does not seek the death penalty but is seeking imprisonment for life without possibility of parole as the maximum punishment, if the jury find s the defendant guilty of first degree murder, present law requires the jury to fix the punishment in a separate sentencing proceeding to determine whether the defendant is to be sentenced to imprisonment for life without possibility of parole or imprisonment for life. This bill adds that if the jury find s the defendant guilty of rape of a child , then the jury must also fix the punishment in a separate sentencing proceeding to determine whether the defendant is to be sentenced to imprisonment for life without possibility of parole or imprisonment for life .