71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
 
CC No. 2 A to B-Eng. HB 2379
 
LC 797/HB 2379-B16
 
            CONFERENCE COMMITTEE NO. 2 AMENDMENTS TO
                   B-ENGROSSED HOUSE BILL 2379
 
                             July 6
 
 
 
 
                         Amended Summary
  Excludes riding in or using public transit vehicle from crime
of unauthorized use of motor vehicle. Expands crime of
interfering with public transportation.
    { - Creates crime of cockfighting. Creates crime of forcible
recovery of a fighting bird. Punishes each by maximum five years'
imprisonment, $100,000 fine, or both. Creates crime of
participation in cockfighting. Punishes by maximum one year's
imprisonment, $5,000 fine, or both. Includes cockfighting,
forcible recovery of a fighting bird and participation in
cockfighting in crimes covered by Oregon anti-racketeering
provisions. - }
  Allows flexibility in sentencing persons convicted of rape in
the second degree, sodomy in the second degree, unlawful sexual
penetration in the second degree and sexual abuse in the first
degree under specified circumstances.
 
Speaker Simmons:
  Your Conference Committee to whom was referred B-engrossed
House Bill 2379, having had the same under consideration,
respectfully reports it back with the recommendation that the
House concur in the Senate amendments dated June 4 and that the
bill be amended as follows and repassed.
 
  On page 1 of the printed B-engrossed bill, line 2, after the
first 'ORS' delete the rest of the line and line 3 and insert '
137.375, 137.712, 163.165 and 164.135; repealing ORS 166.115; and
providing for criminal sentence reduction that requires approval
by a two-thirds majority.'.
  On page 3, after line 11, insert:   { +  + }
  '  { +  SECTION 5. + } ORS 137.712 is amended to read:
  ' 137.712. (1)(a) Notwithstanding ORS 137.700 and 137.707, when
a person is convicted of manslaughter in the second degree as
defined in ORS 163.125, assault in the second degree as defined
in ORS 163.175 (1)(b), kidnapping in the second degree as defined
in ORS 163.225 { + , rape in the second degree as defined in ORS
163.365, sodomy in the second degree as defined in ORS 163.395,
unlawful sexual penetration in the second degree as defined in
ORS 163.408, sexual abuse in the first degree as defined in ORS
163.427 (1)(a)(A)  + }or robbery in the second degree as defined
in ORS 164.405, the court may impose a sentence according to the
rules of the Oregon Criminal Justice Commission that is less than
the minimum sentence that otherwise may be required by ORS
137.700 or 137.707 if the court, on the record at sentencing,
makes the findings set forth in subsection (2) of this section
and finds that a substantial and compelling reason under the
rules of the Oregon Criminal Justice Commission justifies the
lesser sentence.  When the court imposes a sentence under this
 
subsection, the person is eligible for a reduction in the
sentence as provided in ORS 421.121 and any other statute.
  ' (b) In order to make a dispositional departure under this
section, the court must make the following additional findings on
the record:
  ' (A) There exists a substantial and compelling reason not
relied upon in paragraph (a) of this subsection;
  ' (B) A sentence of probation will be more effective than a
prison term in reducing the risk of offender recidivism; and
  ' (C) A sentence of probation will better serve to protect
society.
  ' (2) A conviction is subject to subsection (1) of this section
only if the sentencing court finds on the record by a
preponderance of the evidence:
  ' (a) If the conviction is for manslaughter in the second
degree:
  ' (A) That the defendant is the mother or father of the victim;
  ' (B) That the death of the victim was the result of an injury
or illness that was not caused by the defendant;
  ' (C) That the defendant treated the injury or illness solely
by spiritual treatment in accordance with the religious beliefs
or practices of the defendant and based on a good faith belief
that spiritual treatment would bring about the victim's recovery
from the injury or illness;
  ' (D) That no other person previously under the defendant's
care has died or sustained significant physical injury as a
result of or despite the use of spiritual treatment, regardless
of whether the spiritual treatment was used alone or in
conjunction with medical care; and
  ' (E) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section or for
criminal mistreatment in the second degree.
  ' (b) If the conviction is for assault in the second degree:
  ' (A) That the victim was not physically injured by means of a
deadly weapon;
  ' (B) That the victim did not suffer a significant physical
injury; and
  ' (C) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section.
  ' (c) If the conviction is for kidnapping in the second degree:
  ' (A) That the victim was at least 12 years of age at the time
the crime was committed; and
  ' (B) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section.
  ' (d) If the conviction is for robbery in the second degree:
  ' (A) That the victim did not suffer a significant physical
injury;
  ' (B) That, if the defendant represented by words or conduct
that the defendant was armed with a dangerous weapon, the
representation did not reasonably put the victim in fear of
imminent significant physical injury;
  ' (C) That, if the defendant represented by words or conduct
that the defendant was armed with a deadly weapon, the
representation did not reasonably put the victim in fear of
imminent physical injury; and
  ' (D) That the defendant does not have a previous conviction
for a crime listed in subsection (4) of this section.
  '  { +  (e) If the conviction is for rape in the second degree,
sodomy in the second degree or sexual abuse in the first degree:
  ' (A) That the victim was at least 12 years of age, but under
14 years of age, at the time of the offense;
  ' (B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
  ' (C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
 
have been a felony sexual offense if the act had been committed
by an adult;
  ' (D) That the defendant was no more than five years older than
the victim at the time of the offense;
  ' (E) That the offense did not involve sexual contact with any
minor other than the victim; and
  ' (F) That the victim's lack of consent was due solely to
incapacity to consent by reason of being under 18 years of age at
the time of the offense.
  ' (f) If the conviction is for unlawful sexual penetration in
the second degree:
  ' (A) That the victim was 12 years of age or older at the time
of the offense;
  ' (B) That the defendant does not have a prior conviction for a
crime listed in subsection (4) of this section;
  ' (C) That the defendant has not been previously found to be
within the jurisdiction of a juvenile court for an act that would
have been a felony sexual offense if the act had been committed
by an adult;
  ' (D) That the defendant was no more than five years older than
the victim at the time of the offense;
  ' (E) That the offense did not involve sexual contact with any
minor other than the victim;
  ' (F) That the victim's lack of consent was due solely to
incapacity to consent by reason of being under 18 years of age at
the time of the offense; and
  ' (G) That the object used to commit the unlawful sexual
penetration was the hand or any part thereof of the
defendant. + }
  ' (3) In making the findings required by subsections (1) and
(2) of this section, the court may consider any evidence
presented at trial and may receive and consider any additional
relevant information offered by either party at sentencing.
  ' (4) The crimes to which subsection (2)(a)(E), (b)(C),
(c)(B) { + , + }   { - and - }  (d)(D) { + , (e)(B) and
(f)(B) + } of this section refer are:
  ' (a) A crime listed in ORS 137.700 (2) or 137.707 (4);
  ' (b) Escape in the first degree, as defined in ORS 162.165;
  ' (c) Aggravated murder, as defined in ORS 163.095;
  ' (d) Criminally negligent homicide, as defined in ORS 163.145;
  ' (e) Assault in the third degree, as defined in ORS 163.165;
  ' (f) Criminal mistreatment in the first degree, as defined in
ORS 163.205 (1)(b)(A);
  ' (g) Rape in the third degree, as defined in ORS 163.355;
  ' (h) Sodomy in the third degree, as defined in ORS 163.385;
  ' (i) Sexual abuse in the second degree, as defined in ORS
163.425;
  ' (j) Stalking, as defined in ORS 163.732;
  ' (k) Burglary in the first degree, as defined in ORS 164.225,
when it is classified as a person felony under the rules of the
Oregon Criminal Justice Commission;
  ' (L) Arson in the first degree, as defined in ORS 164.325;
  ' (m) Robbery in the third degree, as defined in ORS 164.395;
  ' (n) Intimidation in the first degree, as defined in ORS
166.165;
  ' (o) Promoting prostitution, as defined in ORS 167.012; and
  ' (p) An attempt or solicitation to commit any Class A or B
felony listed in paragraphs (a) to (L) of this subsection.
  ' (5) Notwithstanding ORS 137.545 (5)(b), if a person sentenced
to probation under this section violates a condition of probation
by committing a new crime, the court shall revoke the probation
and impose the presumptive sentence of imprisonment under the
rules of the Oregon Criminal Justice Commission.
  ' (6) As used in this section:
  ' (a) 'Conviction' includes, but is not limited to:
 
  ' (A) A juvenile court adjudication finding a person within the
court's jurisdiction under ORS 419C.005, if the person was at
least 15 years of age at the time the person committed the
offense that brought the person within the jurisdiction of the
juvenile court.
  ' (B) A conviction in another jurisdiction for a crime that if
committed in this state would constitute a crime listed in
subsection (4) of this section.
  ' (b) 'Previous conviction' means a conviction that was entered
prior to imposing sentence on the current crime provided that the
prior conviction is based on a crime committed in a separate
criminal episode. 'Previous conviction' does not include a
conviction for a Class C felony, including an attempt or
solicitation to commit a Class B felony, or a misdemeanor, unless
the conviction was entered within the 10-year period immediately
preceding the date on which the current crime was committed.
  ' (c) 'Significant physical injury' means a physical injury
that:
  ' (A) Creates a risk of death that is not a remote risk;
  ' (B) Causes a serious and temporary disfigurement;
  ' (C) Causes a protracted disfigurement; or
  ' (D) Causes a prolonged impairment of health or the function
of any bodily organ.
  '  { +  SECTION 6. + }  { + The amendments to ORS 137.712 by
section 5 of this 2001 Act apply to crimes committed on or after
the effective date of this 2001 Act. + }
  '  { +  SECTION 7. + } ORS 137.375 is amended to read:
  ' 137.375. When the date of release from imprisonment of any
prisoner in an adult correctional facility under the jurisdiction
of the Department of Corrections, or any prisoner in
 { - the - }   { + a + } county or city jail, falls on Saturday,
Sunday or a legal holiday, the prisoner shall be released { + ,
at the discretion of the releasing authority, + } on the
first { + , second or third + } day preceding the date of release
which is not a Saturday, Sunday or legal holiday { + . + }  { - ,
except for - }  Prisoners of a county or city jail serving a
mandatory minimum term specifically limited to weekends
 { - who - }  shall   { - only - } be released  { + only + } at
the time fixed in the sentence.'.
 
                         /sMax Williams
                           Representative
 
                         /sLane Shetterly
                           Representative
 
                         /sRobert Ackerman
                           Representative
 
                         /sJohn Minnis
                           Senator
 
                         /sPeter Courtney
                           Senator
 
                         /sVerne Duncan
                           Senator
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