75th OREGON LEGISLATIVE ASSEMBLY--2009 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 3878
A-Engrossed
House Bill 3505
Ordered by the House June 23
Including House Amendments dated June 23
Sponsored by Representative BARKER, Senator STARR;
Representatives BARTON, MATTHEWS, MAURER, NATHANSON, OLSON,
RICHARDSON, SCHAUFLER, WEIDNER, Senators BOQUIST, HASS,
SCHRADER, VERGER, WHITSETT (at the request of Chris Popp in
memory of John Stephen Popp and Heather Snively)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
{ - Classifies crime of murder as aggravated murder if
defendant knows victim is pregnant. - }
Classifies crime of assault in second degree as assault in
first degree if defendant knows victim is pregnant.
Punishes crime of assault in fourth degree as Class C felony if
defendant knows victim is pregnant.
{ + Requires defendant who is convicted of murdering pregnant
victim, who is at least 15 years of age at time of committing
murder and who knew that victim was pregnant to be sentenced to
either life imprisonment without possibility of release or parole
or life imprisonment. Creates procedure by which sentence is
determined. Specifies terms of each sentence.
Applies to conduct occurring on or after effective date of
Act. + }
A BILL FOR AN ACT
Relating to crime; creating new provisions; and amending ORS
163.115, 163.160 and 163.185.
Be It Enacted by the People of the State of Oregon:
SECTION 1. ORS 163.115 is amended to read:
163.115. (1) Except as provided in ORS 163.118 and 163.125,
criminal homicide constitutes murder:
(a) When it is committed intentionally, except that it is an
affirmative defense that, at the time of the homicide, the
defendant was under the influence of an extreme emotional
disturbance;
(b) When it is committed by a person, acting either alone or
with one or more persons, who commits or attempts to commit any
of the following crimes and in the course of and in furtherance
of the crime the person is committing or attempting to commit, or
during the immediate flight therefrom, the person, or another
participant if there be any, causes the death of a person other
than one of the participants:
(A) Arson in the first degree as defined in ORS 164.325;
(B) Criminal mischief in the first degree by means of an
explosive as defined in ORS 164.365;
(C) Burglary in the first degree as defined in ORS 164.225;
(D) Escape in the first degree as defined in ORS 162.165;
(E) Kidnapping in the second degree as defined in ORS 163.225;
(F) Kidnapping in the first degree as defined in ORS 163.235;
(G) Robbery in the first degree as defined in ORS 164.415;
(H) Any felony sexual offense in the first degree defined in
this chapter;
(I) Compelling prostitution as defined in ORS 167.017; or
(J) Assault in the first degree, as defined in ORS 163.185, and
the victim is under 14 years of age, or assault in the second
degree, as defined in ORS 163.175 (1)(a) or (b), and the victim
is under 14 years of age; or
(c) By abuse when a person, recklessly under circumstances
manifesting extreme indifference to the value of human life,
causes the death of a child under 14 years of age or a dependent
person, as defined in ORS 163.205, and:
(A) The person has previously engaged in a pattern or practice
of assault or torture of the victim or another child under 14
years of age or a dependent person; or
(B) The person causes the death by neglect or maltreatment.
(2) An accusatory instrument alleging murder by abuse under
subsection (1)(c) of this section need not allege specific
incidents of assault or torture.
(3) It is an affirmative defense to a charge of violating
subsection (1)(b) of this section that the defendant:
(a) Was not the only participant in the underlying crime;
(b) Did not commit the homicidal act or in any way solicit,
request, command, importune, cause or aid in the commission
thereof;
(c) Was not armed with a dangerous or deadly weapon;
(d) Had no reasonable ground to believe that any other
participant was armed with a dangerous or deadly weapon; and
(e) Had no reasonable ground to believe that any other
participant intended to engage in conduct likely to result in
death.
(4) It is an affirmative defense to a charge of violating
subsection (1)(c)(B) of this section that the child or dependent
person was under care or treatment solely by spiritual means
pursuant to the religious beliefs or practices of the child or
person or the parent or guardian of the child or person.
(5)(a) { + Except as otherwise provided in section 1a of this
2009 Act, + } a person convicted of murder, who was at least 15
years of age at the time of committing the murder, shall be
punished by imprisonment for life.
(b) When a defendant is convicted of murder under this section,
the court shall order that the defendant shall be confined for a
minimum of 25 years without possibility of parole, release to
post-prison supervision, release on work release or any form of
temporary leave or employment at a forest or work camp.
(c) At any time after completion of a minimum period of
confinement pursuant to paragraph (b) of this subsection, the
State Board of Parole and Post-Prison Supervision, upon the
petition of a prisoner so confined, shall hold a hearing to
determine if the prisoner is likely to be rehabilitated within a
reasonable period of time. The sole issue is whether { - or
not - } the prisoner is likely to be rehabilitated within a
reasonable period of time. At the hearing the prisoner has:
(A) The burden of proving by a preponderance of the evidence
the likelihood of rehabilitation within a reasonable period of
time; { - and - }
(B) The right, if the prisoner is without sufficient funds to
employ an attorney, to be represented by legal counsel, appointed
by the board, at board expense; and
(C) The right to a subpoena upon a showing of the general
relevance and reasonable scope of the evidence sought, provided
that any subpoena issued on behalf of the prisoner must be issued
by the State Board of Parole and Post-Prison Supervision pursuant
to rules adopted by the board.
(d) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's
confinement should be changed to life imprisonment with the
possibility of parole, release to post-prison supervision or work
release, it shall enter an order to that effect and the order
shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole, release to
post-prison supervision or work release and may set a release
date. Otherwise, the board shall deny the relief sought in the
petition.
(e) The board's final order shall be accompanied by findings of
fact and conclusions of law. The findings of fact shall consist
of a concise statement of the underlying facts supporting the
findings as to each contested issue of fact and as to each
ultimate fact required to support the board's order.
(f) Not less than two years after the denial of the relief
sought in a petition under paragraph (c) of this subsection, the
prisoner may petition again for a change in the terms of
confinement. Further petitions for a change may be filed at
intervals of not less than two years thereafter.
(6) As used in this section:
(a) 'Assault' means to intentionally, knowingly or recklessly
cause physical injury to another person. 'Assault ' does not
include the causing of physical injury in a motor vehicle
accident that occurs by reason of the reckless conduct of a
defendant.
(b) 'Neglect or maltreatment' means a violation of ORS 163.535,
163.545 or 163.547 or a failure to provide adequate food,
clothing, shelter or medical care that is likely to endanger the
health or welfare of a child under 14 years of age or a dependent
person. This paragraph is not intended to replace or affect the
duty or standard of care required under ORS chapter 677.
(c) 'Pattern or practice' means one or more previous episodes.
(d) 'Torture' means to intentionally inflict intense physical
pain upon an unwilling victim as a separate objective apart from
any other purpose.
SECTION 1a. { + (1) When a defendant, who was at least 15
years of age at the time of committing the murder, is convicted
of murdering a pregnant victim under ORS 163.115 (1)(a) and the
defendant knew that the victim was pregnant, the defendant shall
be sentenced to life imprisonment without the possibility of
release or parole or to life imprisonment. The court shall
conduct a sentencing proceeding to determine whether the
defendant shall be sentenced to life imprisonment without the
possibility of release or parole as described in subsection (4)
of this section or to life imprisonment as described in
subsection (5) of this section. If the defendant waives all
rights to a jury sentencing proceeding, the court shall conduct
the sentencing proceeding as the trier of fact. The procedure for
the sentencing proceeding, whether before a court or a jury,
shall follow the procedure of ORS 163.150 (1)(a), as modified by
this section.
(2) Following the presentation of evidence and argument under
subsection (1) of this section, the court shall instruct the jury
that the trial court shall sentence the defendant to life
imprisonment without the possibility of release or parole as
described in subsection (4) of this section, unless after
considering all of the evidence submitted, 10 or more members of
the jury find there are sufficient mitigating circumstances to
warrant life imprisonment with the possibility of release or
parole as described in subsection (5) of this section. If 10 or
more members of the jury do not find there are sufficient
mitigating circumstances to warrant life imprisonment with the
possibility of release or parole, the trial court shall sentence
the defendant to life imprisonment without the possibility of
release or parole as described in subsection (4) of this section.
If 10 or more members of the jury find there are sufficient
mitigating circumstances to warrant life imprisonment with the
possibility of release or parole, the trial court shall sentence
the defendant to life imprisonment as described in subsection (5)
of this section.
(3) Nothing in this section precludes the court from sentencing
the defendant to life imprisonment, as described in subsection
(5) of this section, or life imprisonment without the possibility
of release or parole, as described in subsection (4) of this
section, pursuant to a stipulation of sentence or stipulation of
sentencing facts agreed to and offered by both parties if the
defendant waives all rights to a jury sentencing proceeding.
(4) A sentence of life imprisonment without the possibility of
release or parole under this section may not be suspended,
deferred or commuted by any judicial officer, and the State Board
of Parole and Post-Prison Supervision may neither parole the
prisoner nor reduce the period of confinement in any manner
whatsoever. The Department of Corrections or any executive
official may not permit the prisoner to participate in any sort
of release or furlough program.
(5) If the defendant is sentenced to life imprisonment, the
court shall order that the defendant be confined for a minimum of
30 years without possibility of parole, release to post-prison
supervision, release on work release or any form of temporary
leave or employment at a forest or work camp.
(6) At any time after completion of the minimum period of
confinement pursuant to subsection (5) of this section, the
board, upon the petition of a prisoner so confined, shall hold a
hearing to determine if the prisoner is likely to be
rehabilitated within a reasonable period of time. The sole issue
shall be whether the prisoner is likely to be rehabilitated
within a reasonable period of time. The proceeding shall be
conducted in the manner prescribed for a contested case hearing
under ORS chapter 183, except that:
(a) The prisoner has the burden of proving by a preponderance
of the evidence the likelihood of rehabilitation within a
reasonable period of time;
(b) The prisoner has the right, if the prisoner is without
sufficient funds to employ an attorney, to be represented by
legal counsel, appointed by the board, at board expense; and
(c) The prisoner has the right to a subpoena upon a showing of
the general relevance and reasonable scope of the evidence
sought, provided that any subpoena issued on behalf of the
prisoner must be issued by the board pursuant to rules adopted by
the board.
(7) If, upon hearing all of the evidence, the board, upon a
unanimous vote of all of its members, finds that the prisoner is
capable of rehabilitation and that the terms of the prisoner's
confinement should be changed to life imprisonment with the
possibility of parole, release on post-prison supervision or work
release, it shall enter an order to that effect and the order
shall convert the terms of the prisoner's confinement to life
imprisonment with the possibility of parole, release on
post-prison supervision or work release and may set a release
date. Otherwise the board shall deny the relief sought in the
petition.
(8) Not less than two years after the denial of the relief
sought in a petition under this section, the prisoner may
petition again for a change in the terms of confinement. Further
petitions for a change may be filed at intervals of not less than
two years thereafter. + }
SECTION 2. ORS 163.185 is amended to read:
163.185. (1) A person commits the crime of assault in the first
degree if the person:
(a) Intentionally causes serious physical injury to another by
means of a deadly or dangerous weapon;
(b) Intentionally or knowingly causes serious physical injury
to a child under six years of age;
{ + (c) Violates ORS 163.175 knowing that the victim is
pregnant; + } or
{ - (c) - } { + (d) + } Intentionally, knowingly or
recklessly causes serious physical injury to another while
operating a motor vehicle under the influence of intoxicants in
violation of ORS 813.010 and:
(A) The person has at least three previous convictions for
driving while under the influence of intoxicants under ORS
813.010, or its statutory counterpart in any jurisdiction, in the
10 years prior to the date of the current offense; or
(B)(i) The person has a previous conviction for any of the
crimes described in subsection (2) of this section, or their
statutory counterparts in any jurisdiction; and
(ii) The victim's death or serious physical injury in the
previous conviction was caused by the person driving a motor
vehicle.
(2) The previous convictions to which subsection
{ - (1)(c)(B) - } { + (1)(d)(B) + } of this section apply are:
(a) Manslaughter in the first degree under ORS 163.118;
(b) Manslaughter in the second degree under ORS 163.125;
(c) Criminally negligent homicide under ORS 163.145;
(d) Assault in the first degree under this section;
(e) Assault in the second degree under ORS 163.175; or
(f) Assault in the third degree under ORS 163.165.
(3) Assault in the first degree is a Class A felony.
(4) It is an affirmative defense to a prosecution under
subsection { - (1)(c)(B) - } { + (1)(d)(B) + } of this
section that the defendant was not under the influence of
intoxicants at the time of the conduct that resulted in the
previous conviction.
SECTION 3. ORS 163.160 is amended to read:
163.160. (1) A person commits the crime of assault in the
fourth degree if the person:
(a) Intentionally, knowingly or recklessly causes physical
injury to another; or
(b) With criminal negligence causes physical injury to another
by means of a deadly weapon.
(2) Assault in the fourth degree is a Class A misdemeanor.
(3) Notwithstanding subsection (2) of this section, assault in
the fourth degree is a Class C felony if the person commits the
crime of assault in the fourth degree and:
(a) The person has previously been convicted of assaulting the
same victim;
(b) The person has previously been convicted at least three
times under this section or under equivalent laws of another
jurisdiction and all of the assaults involved domestic violence,
as defined in ORS 135.230; { - or - }
(c) The assault is committed in the immediate presence of, or
is witnessed by, the person's or the victim's minor child or
stepchild or a minor child residing within the household of the
person or victim { + ; or
(d) The person commits the assault knowing that the victim is
pregnant + }.
(4) For the purposes of subsection (3) of this section, an
assault is witnessed if the assault is seen or directly perceived
in any other manner by the child.
SECTION 4. { + Section 1a of this 2009 Act and the amendments
to ORS 163.115, 163.160 and 163.185 by sections 1, 2 and 3 of
this 2009 Act apply to conduct occurring on or after the
effective date of this 2009 Act. + }
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