HB338 By Representatives Pettus, Rowe, Harper, Weaver, Hill (M), Johnson (K), Henry, Collins, Nordgren, Patterson, Greer, Boothe, Lee, Ledbetter, Whorton (R) and McCutcheon RFD Judiciary Rd 1 25-FEB-16

SYNOPSIS: Under existing law, certain periods of incarceration are required for persons convicted of first, second, or third degree domestic violence.

This bill would double the incarceration periods for convictions of first or second degree domestic violence if a child under the age of 18 years witnessed the domestic violence and would provide increased incarceration periods for a first conviction of third degree domestic violence if a child under the age of 18 years witnessed the domestic violence and enhanced penalties for second, third, or subsequent convictions of third degree domestic violence if a child witnessed the domestic violence.

Also under existing law, a person who commits a capital offense may be sentenced to death or life without parole.

This bill would include as a capital offense murder by the defendant that is witnessed by a child under the age of 18 years, if the victim was the parent or legal guardian of the child.

Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, prohibits a general law whose purpose or effect would be to require a new or increased expenditure of local funds from becoming effective with regard to a local governmental entity without enactment by a 2/3 vote unless: it comes within one of a number of specified exceptions; it is approved by the affected entity; or the Legislature appropriates funds, or provides a local source of revenue, to the entity for the purpose.

The purpose or effect of this bill would be to require a new or increased expenditure of local funds within the meaning of the amendment. However, the bill does not require approval of a local governmental entity or enactment by a 2/3 vote to become effective because it comes within one of the specified exceptions contained in the amendment.

A BILL TO BE ENTITLED AN ACT

To amend Sections 13A-6-130, 13A-6-131, and 13A-6-132, Code of Alabama 1975, as last amended by Act 2015-493, 2015 Regular Session, to provide increased incarceration periods and enhanced penalties for convictions of domestic violence in the first, second, or third degree; to amend Section 13A-5-40, Code of Alabama 1975, to include as a capital offense murder by the defendant that is witnessed by a child under the age of 18 years, if the victim was the parent or legal guardian of the child; and in connection therewith would have as its purpose or effect the requirement of a new or increased expenditure of local funds within the meaning of Amendment 621 of the Constitution of Alabama of 1901, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended.

BE IT ENACTED BY THE LEGISLATURE OF ALABAMA:Section 1. Sections 13A-6-130, 13A-6-131, and 13A-6-132, Code of Alabama 1975, as last amended by Act 2015-493, 2015 Regular Session, and Section 13A-5-40, Code of Alabama 1975, are amended to read as follows:

§13A-6-130.

"(a) A person commits the crime of domestic violence in the first degree if the person commits the crime of assault in the first degree pursuant to Section 13A-6-20 or aggravated stalking pursuant to Section 13A-6-91, and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating relationship, as defined in Section 13A-6-139.1, with the defendant. Domestic violence in the first degree is a Class A felony, except that the defendant shall serve a minimum term of imprisonment of one year without consideration of probation, parole, good time credits, or any other reduction in time for any second or subsequent conviction under this subsection.

"(b) The minimum term of imprisonment imposed under subsection (a) shall be double without consideration of probation, parole, good time credits, or any reduction in time if a defendant willfully violates a protection order issued by a court of competent jurisdiction and in the process of violating the order commits domestic violence in the first degree.

"(c) The minimum term of imprisonment imposed under subsection (a) shall be double without consideration of probation, parole, good time credits, or any reduction in time if a child under the age of 18 years witnesses the defendant committing the domestic violence in the first degree.

§13A-6-131.

"(a) A person commits the crime of domestic violence in the second degree if the person commits the crime of assault in the second degree pursuant to Section 13A-6-21; the crime of intimidating a witness pursuant to Section 13A-10-123; the crime of stalking pursuant to Section 13A-6-90; the crime of burglary in the second or third degree pursuant to Sections 13A-7-6 and 13A-7-7; or the crime of criminal mischief in the first degree pursuant to Section 13A-7-21 and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating relationship, as defined in Section 13A-6-139.1, with the defendant. Domestic violence in the second degree is a Class B felony, except the defendant shall serve a minimum term of imprisonment of six months without consideration of probation, parole, good time credits, or any reduction in time for any second or subsequent conviction under this subsection.

"(b) The minimum term of imprisonment imposed under subsection (a) shall be double without consideration of probation, parole, good time credits, or any reduction in time if a defendant willfully violates a protection order issued by a court of competent jurisdiction and in the process of violating the order commits domestic violence in the second degree.

"(c) The minimum term of imprisonment imposed under subsection (a) shall be double without consideration of probation, parole, good time credits, or any reduction in time if a child under the age of 18 years witnesses the defendant committing the domestic violence in the second degree.

§13A-6-132.

"(a) A person commits domestic violence in the third degree if the person commits the crime of assault in the third degree pursuant to Section 13A-6-22; the crime of menacing pursuant to Section 13A-6-23; the crime of reckless endangerment pursuant to Section 13A-6-24; the crime of criminal coercion pursuant to Section 13A-6-25; the crime of harassment pursuant to subsection (a) of Section 13A-11-8; the crime of criminal surveillance pursuant to Section 13A-11-32; the crime of harassing communications pursuant to subsection (b) of Section 13A-11-8; the crime of criminal trespass in the third degree pursuant to Section 13A-7-4; the crime of criminal mischief in the second or third degree pursuant to Sections 13A-7-22 and 13A-7-23; or the crime of arson in the third degree pursuant to Section 13A-7-43; and the victim is a current or former spouse, parent, child, any person with whom the defendant has a child in common, a present or former household member, or a person who has or had a dating relationship, as defined in Section 13A-6-139.1, with the defendant. Domestic violence in the third degree is a Class A misdemeanor.

"(b) The minimum term of imprisonment imposed under subsection (a) shall be 30 days without consideration of reduction in time if a defendant willfully violates a protection order issued by a court of competent jurisdiction and in the process of violating the order commits domestic violence in the third degree.

"(c)(1) The minimum term of imprisonment imposed under subsection (a) shall be 15 days without the consideration of reduction in time if a child under the age of 18 years witnesses the defendant commit the domestic violence in the third degree.

"(2) A second conviction under subsection (a) with a child under the age of 18 years witnessing the domestic violence is a Class A misdemeanor, and the defendant shall serve a minimum term of imprisonment of 60 days without consideration for any reduction in time.

"(3) A third or subsequent conviction of subsection (a) with a child under the age of 18 years witnessing the domestic violence is a Class C felony.

"(c) (d) A second conviction under subsection (a) is a Class A misdemeanor, except the defendant shall serve a minimum term of imprisonment of 10 days in a city or county jail or detention facility without consideration for any reduction in time.

"(d) (e) A third or subsequent conviction under subsection (a) is a Class C felony.

"(e) (f) For purposes of determining second, third, or subsequent number of convictions, convictions in municipal court shall be included.

§13A-5-40.

"(a) The following are capital offenses:

"(1) Murder by the defendant during a kidnapping in the first degree or an attempt thereof committed by the defendant.

"(2) Murder by the defendant during a robbery in the first degree or an attempt thereof committed by the defendant.

"(3) Murder by the defendant during a rape in the first or second degree or an attempt thereof committed by the defendant; or murder by the defendant during sodomy in the first or second degree or an attempt thereof committed by the defendant.

"(4) Murder by the defendant during a burglary in the first or second degree or an attempt thereof committed by the defendant.

"(5) Murder of any police officer, sheriff, deputy, state trooper, federal law enforcement officer, or any other state or federal peace officer of any kind, or prison or jail guard, while such officer or guard is on duty, regardless of whether the defendant knew or should have known the victim was an officer or guard on duty, or because of some official or job-related act or performance of such officer or guard.

"(6) Murder committed while the defendant is under sentence of life imprisonment.

"(7) Murder done for a pecuniary or other valuable consideration or pursuant to a contract or for hire.

"(8) Murder by the defendant during sexual abuse in the first or second degree or an attempt thereof committed by the defendant.

"(9) Murder by the defendant during arson in the first or second degree committed by the defendant; or murder by the defendant by means of explosives or explosion.

"(10) Murder wherein two or more persons are murdered by the defendant by one act or pursuant to one scheme or course of conduct.

"(11) Murder by the defendant when the victim is a state or federal public official or former public official and the murder stems from or is caused by or is related to his official position, act, or capacity.

"(12) Murder by the defendant during the act of unlawfully assuming control of any aircraft by use of threats or force with intent to obtain any valuable consideration for the release of said aircraft or any passenger or crewmen thereon or to direct the route or movement of said aircraft, or otherwise exert control over said aircraft.

"(13) Murder by a defendant who has been convicted of any other murder in the 20 years preceding the crime; provided that the murder which constitutes the capital crime shall be murder as defined in subsection (b) of this section; and provided further that the prior murder conviction referred to shall include murder in any degree as defined at the time and place of the prior conviction.

"(14) Murder when the victim is subpoenaed, or has been subpoenaed, to testify, or the victim had testified, in any preliminary hearing, grand jury proceeding, criminal trial or criminal proceeding of whatever nature, or civil trial or civil proceeding of whatever nature, in any municipal, state, or federal court, when the murder stems from, is caused by, or is related to the capacity or role of the victim as a witness.

"(15) Murder when the victim is less than fourteen years of age.

"(16) Murder committed by or through the use of a deadly weapon fired or otherwise used from outside a dwelling while the victim is in a dwelling.

"(17) Murder committed by or through the use of a deadly weapon while the victim is in a vehicle.

"(18) Murder committed by or through the use of a deadly weapon fired or otherwise used within or from a vehicle.

"(19) Murder by the defendant where a court had issued a protective order for the victim, against the defendant, pursuant to Section 30-5-1 et seq., or the protective order was issued as a condition of the defendant's pretrial release.

"(20) Murder by the defendant that is witnessed by a child under the age of 18 years, if the victim was the parent or legal guardian of the child.

"(b) Except as specifically provided to the contrary in the last part of subdivision (a)(13) of this section, the terms "murder" and "murder by the defendant" as used in this section to define capital offenses mean murder as defined in Section 13A-6-2(a)(1), but not as defined in Section 13A-6-2(a)(2) and (3). Subject to the provisions of Section 13A-5-41, murder as defined in Section 13A-6-2(a)(2) and (3), as well as murder as defined in Section 13A-6-2(a)(1), may be a lesser included offense of the capital offenses defined in subsection (a) of this section.

"(c) A defendant who does not personally commit the act of killing which constitutes the murder is not guilty of a capital offense defined in subsection (a) of this section unless that defendant is legally accountable for the murder because of complicity in the murder itself under the provisions of Section 13A-2-23, in addition to being guilty of the other elements of the capital offense as defined in subsection (a) of this section.

"(d) To the extent that a crime other than murder is an element of a capital offense defined in subsection (a) of this section, a defendant's guilt of that other crime may also be established under Section 13A-2-23. When the defendant's guilt of that other crime is established under Section 13A-2-23, that crime shall be deemed to have been "committed by the defendant" within the meaning of that phrase as it is used in subsection (a) of this section."

Section 2. Although this bill would have as its purpose or effect the requirement of a new or increased expenditure of local funds, the bill is excluded from further requirements and application under Amendment 621, now appearing as Section 111.05 of the Official Recompilation of the Constitution of Alabama of 1901, as amended, because the bill defines a new crime or amends the definition of an existing crime.

Section 3. This act shall become effective on the first day of the third month following its passage and approval by the Governor, or its otherwise becoming law.

Domestic Violence

Crimes and Offenses

Criminal Law and Procedure

Capital Offenses

District Attorneys

Law Enforcement

Children

Minors

Code Amended