H.B. 258

1

CRIMINAL SENTENCING AMENDMENTS
2 2001 GENERAL SESSION
3 STATE OF UTAH
4 Sponsor: Scott Daniels
5 This act modifies the Criminal Code by amending sentencing provisions regarding
6 imprisonment and life imprisonment without parole and clarifying that capital offenses are
7 capital felonies. This act creates a new section providing an enhanced penalty for specified
8 violent offenses committed by a prisoner and repealing the section dealing only with
9 aggravated assault by a prisoner. This act amends the section that provides that a murder
10 is aggravated murder if the defendant was previously convicted of a violent offense, by
11 specifically listing the offenses. This act also makes cross reference corrections.
12 This act affects sections of Utah Code Annotated 1953 as follows:
13 AMENDS:
14 76-3-201, as last amended by Chapter 270, Laws of Utah 1999
15 76-3-203.1, as last amended by Chapter 214, Laws of Utah 2000
16 76-3-206, as last amended by Chapter 142, Laws of Utah 1992
17 76-3-207, as last amended by Chapter 137, Laws of Utah 1998
18 76-3-207.5, as enacted by Chapter 142, Laws of Utah 1992
19 76-4-201, as last amended by Chapter 32, Laws of Utah 1974
20 76-5-202, as last amended by Chapter 125, Laws of Utah 2000
21 76-8-306, as last amended by Chapter 203, Laws of Utah 2000
22 76-8-316, as enacted by Chapter 51, Laws of Utah 1995
23 77-16a-201, as enacted by Chapter 171, Laws of Utah 1992
24 77-16a-202, as last amended by Chapter 256, Laws of Utah 2000
25 77-18-5.5, as last amended by Chapter 190, Laws of Utah 1988
26 77-20-1, as last amended by Chapter 293, Laws of Utah 1998
27 77-32-201, as enacted by Chapter 354, Laws of Utah 1997

28 77-32-601, as enacted by Chapter 354, Laws of Utah 1997
29 77-32-604, as last amended by Chapter 333, Laws of Utah 1998
30 78-46-5, as repealed and reenacted by Chapter 44, Laws of Utah 1996
31 ENACTS:
32 76-3-203.6, Utah Code Annotated 1953
33 REPEALS:
34 76-5-103.5, as last amended by Chapter 207, Laws of Utah 1997
35 Be it enacted by the Legislature of the state of Utah:
36 Section 1. Section 76-3-201 is amended to read:
37 76-3-201. Definitions -- Sentences or combination of sentences allowed -- Civil
38 penalties -- Restitution -- Hearing.
39 (1) As used in this section:
40 (a) "Conviction" includes a:
41 (i) judgment of guilt; and
42 (ii) plea of guilty.
43 (b) "Criminal activities" means any offense of which the defendant is convicted or any
44 other criminal conduct for which the defendant admits responsibility to the sentencing court with
45 or without an admission of committing the criminal conduct.
46 (c) "Pecuniary damages" means all special damages, but not general damages, which a
47 person could recover against the defendant in a civil action arising out of the facts or events
48 constituting the defendant's criminal activities and includes the money equivalent of property
49 taken, destroyed, broken, or otherwise harmed, and losses including earnings and medical
50 expenses.
51 (d) "Restitution" means full, partial, or nominal payment for pecuniary damages to a
52 victim, including the accrual of interest from the time of sentencing, insured damages, and
53 payment for expenses to a governmental entity for extradition or transportation and as further
54 defined in Subsection (4)(c).
55 (e) (i) "Victim" means any person whom the court determines has suffered pecuniary
56 damages as a result of the defendant's criminal activities.
57 (ii) "Victim" does not include any coparticipant in the defendant's criminal activities.
58 (2) Within the limits prescribed by this chapter, a court may sentence a person convicted

59 of an offense to any one of the following sentences or combination of them:
60 (a) to pay a fine;
61 (b) to removal or disqualification from public or private office;
62 (c) to probation unless otherwise specifically provided by law;
63 (d) to imprisonment;
64 [(e) to life imprisonment;]
65 [(f)] (e) on or after April 27, 1992, to life in prison without parole; or
66 [(g)] (f) to death.
67 (3) (a) This chapter does not deprive a court of authority conferred by law to:
68 (i) forfeit property;
69 (ii) dissolve a corporation;
70 (iii) suspend or cancel a license;
71 (iv) permit removal of a person from office;
72 (v) cite for contempt; or
73 (vi) impose any other civil penalty.
74 (b) A civil penalty may be included in a sentence.
75 (4) (a) (i) When a person is convicted of criminal activity that has resulted in pecuniary
76 damages, in addition to any other sentence it may impose, the court shall order that the defendant
77 make restitution to victims of crime as provided in this subsection, or for conduct for which the
78 defendant has agreed to make restitution as part of a plea agreement. For purposes of restitution,
79 a victim has the meaning as defined in Subsection (1)(e).
80 (ii) In determining whether restitution is appropriate, the court shall follow the criteria and
81 procedures as provided in Subsections (4)(c) and (4)(d).
82 (iii) If the court finds the defendant owes restitution, the clerk of the court shall enter an
83 order of complete restitution as defined in Subsection (8)(b) on the civil judgment docket and
84 provide notice of the order to the parties.
85 (iv) The order is considered a legal judgment enforceable under the Utah Rules of Civil
86 Procedure, and the person in whose favor the restitution order is entered may seek enforcement of
87 the restitution order in accordance with the Utah Rules of Civil Procedure. In addition, the
88 Department of Corrections may, on behalf of the person in whose favor the restitution order is
89 entered, enforce the restitution order as judgment creditor under the Utah Rules of Civil Procedure.

90 (v) If the defendant fails to obey a court order for payment of restitution and the victim or
91 department elects to pursue collection of the order by civil process, the victim shall be entitled to
92 recover reasonable attorney's fees.
93 (vi) A judgment ordering restitution constitutes a lien when recorded in a judgment docket
94 and shall have the same effect and is subject to the same rules as a judgment for money in a civil
95 action. Interest shall accrue on the amount ordered from the time of sentencing.
96 (vii) The Department of Corrections shall make rules permitting the restitution payments
97 to be credited to principal first and the remainder of payments credited to interest in accordance
98 with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
99 (b) (i) If a defendant has been extradited to this state under Title 77, Chapter 30,
100 Extradition, to resolve pending criminal charges and is convicted of criminal activity in the county
101 to which he has been returned, the court may, in addition to any other sentence it may impose,
102 order that the defendant make restitution for costs expended by any governmental entity for the
103 extradition.
104 (ii) In determining whether restitution is appropriate, the court shall consider the criteria
105 in Subsection (4)(c).
106 (c) In determining restitution, the court shall determine complete restitution and
107 court-ordered restitution.
108 (i) Complete restitution means the restitution necessary to compensate a victim for all
109 losses caused by the defendant.
110 (ii) Court-ordered restitution means the restitution the court having criminal jurisdiction
111 orders the defendant to pay as a part of the criminal sentence at the time of sentencing.
112 (iii) Complete restitution and court-ordered restitution shall be determined as provided in
113 Subsection (8).
114 (d) (i) If the court determines that restitution is appropriate or inappropriate under this
115 subsection, the court shall make the reasons for the decision a part of the court record.
116 (ii) In any civil action brought by a victim to enforce the judgment, the defendant shall be
117 entitled to offset any amounts that have been paid as part of court-ordered restitution to the victim.
118 (iii) A judgment ordering restitution constitutes a lien when recorded in a judgment docket
119 and shall have the same effect and is subject to the same rules as a judgment for money in a civil
120 action. Interest shall accrue on the amount ordered from the time of sentencing.

121 (iv) The Department of Corrections shall make rules permitting the restitution payments
122 to be credited to principal first and the remainder of payments credited to interest in accordance
123 with Title 63, Chapter 46a, Utah Administrative Rulemaking Act.
124 (e) If the defendant objects to the imposition, amount, or distribution of the restitution, the
125 court shall at the time of sentencing allow the defendant a full hearing on the issue.
126 (5) (a) In addition to any other sentence the court may impose, the court shall order the
127 defendant to pay restitution of governmental transportation expenses if the defendant was:
128 (i) transported pursuant to court order from one county to another within the state at
129 governmental expense to resolve pending criminal charges;
130 (ii) charged with a felony or a class A, B, or C misdemeanor; and
131 (iii) convicted of a crime.
132 (b) The court may not order the defendant to pay restitution of governmental transportation
133 expenses if any of the following apply:
134 (i) the defendant is charged with an infraction or on a subsequent failure to appear a
135 warrant is issued for an infraction; or
136 (ii) the defendant was not transported pursuant to a court order.
137 (c) (i) Restitution of governmental transportation expenses under Subsection (5)(a)(i) shall
138 be calculated according to the following schedule:
139 (A) $75 for up to 100 miles a defendant is transported;
140 (B) $125 for 100 up to 200 miles a defendant is transported; and
141 (C) $250 for 200 miles or more a defendant is transported.
142 (ii) The schedule of restitution under Subsection (5)(c)(i) applies to each defendant
143 transported regardless of the number of defendants actually transported in a single trip.
144 (6) (a) If a statute under which the defendant was convicted mandates that one of three
145 stated minimum terms shall be imposed, the court shall order imposition of the term of middle
146 severity unless there are circumstances in aggravation or mitigation of the crime.
147 (b) Prior to or at the time of sentencing, either party may submit a statement identifying
148 circumstances in aggravation or mitigation or presenting additional facts. If the statement is in
149 writing, it shall be filed with the court and served on the opposing party at least four days prior to
150 the time set for sentencing.
151 (c) In determining whether there are circumstances that justify imposition of the highest

152 or lowest term, the court may consider the record in the case, the probation officer's report, other
153 reports, including reports received under Section 76-3-404 , statements in aggravation or mitigation
154 submitted by the prosecution or the defendant, and any further evidence introduced at the
155 sentencing hearing.
156 (d) The court shall set forth on the record the facts supporting and reasons for imposing
157 the upper or lower term.
158 (e) In determining a just sentence, the court shall consider sentencing guidelines regarding
159 aggravating and mitigating circumstances promulgated by the Sentencing Commission.
160 (7) If during the commission of a crime described as child [kidnaping] kidnapping, rape
161 of a child, object rape of a child, sodomy upon a child, or sexual abuse of a child, the defendant
162 causes substantial bodily injury to the child, and if the charge is set forth in the information or
163 indictment and admitted by the defendant, or found true by a judge or jury at trial, the defendant
164 shall be sentenced to the highest minimum term in state prison. This subsection takes precedence
165 over any conflicting provision of law.
166 (8) (a) For the purpose of determining restitution for an offense, the offense shall include
167 any criminal conduct admitted by the defendant to the sentencing court or to which the defendant
168 agrees to pay restitution. A victim of an offense, that involves as an element a scheme, a
169 conspiracy, or a pattern of criminal activity, includes any person directly harmed by the defendant's
170 criminal conduct in the course of the scheme, conspiracy, or pattern.
171 (b) In determining the monetary sum and other conditions for complete restitution, the
172 court shall consider all relevant facts, including:
173 (i) the cost of the damage or loss if the offense resulted in damage to or loss or destruction
174 of property of a victim of the offense;
175 (ii) the cost of necessary medical and related professional services and devices relating to
176 physical, psychiatric, and psychological care, including nonmedical care and treatment rendered
177 in accordance with a method of healing recognized by the law of the place of treatment; the cost
178 of necessary physical and occupational therapy and rehabilitation; and the income lost by the
179 victim as a result of the offense if the offense resulted in bodily injury to a victim; and
180 (iii) the cost of necessary funeral and related services if the offense resulted in the death
181 of a victim.
182 (c) In determining the monetary sum and other conditions for court-ordered restitution, the

183 court shall consider the factors listed in Subsection (8)(b) and:
184 (i) the financial resources of the defendant and the burden that payment of restitution will
185 impose, with regard to the other obligations of the defendant;
186 (ii) the ability of the defendant to pay restitution on an installment basis or on other
187 conditions to be fixed by the court;
188 (iii) the rehabilitative effect on the defendant of the payment of restitution and the method
189 of payment; and
190 (iv) other circumstances which the court determines make restitution inappropriate.
191 (d) The court may decline to make an order or may defer entering an order of restitution
192 if the court determines that the complication and prolongation of the sentencing process, as a result
193 of considering an order of restitution under this subsection, substantially outweighs the need to
194 provide restitution to the victim.
195 Section 2. Section 76-3-203.1 is amended to read:
196 76-3-203.1. Offenses committed in concert with two or more persons -- Notice --
197 Enhanced penalties.
198 (1) (a) A person who commits any offense listed in Subsection (4) is subject to an
199 enhanced penalty for the offense as provided in Subsection (3) if the trier of fact finds beyond a
200 reasonable doubt that the person acted in concert with two or more persons.
201 (b) "In concert with two or more persons" as used in this section means the defendant was
202 aided or encouraged by at least two other persons in committing the offense and was aware that
203 he was so aided or encouraged, and each of the other persons:
204 (i) was physically present; or
205 (ii) participated as a party to any offense listed in Subsection (4).
206 (c) For purposes of Subsection (1)(b)(ii):
207 (i) other persons participating as parties need not have the intent to engage in the same
208 offense or degree of offense as the defendant; and
209 (ii) a minor is a party if the minor's actions would cause him to be a party if he were an
210 adult.
211 (2) The prosecuting attorney, or grand jury if an indictment is returned, shall cause to be
212 subscribed upon the information or indictment notice that the defendant is subject to the enhanced
213 penalties provided under this section.

214 (3) The enhanced penalty for a:
215 (a) class B misdemeanor is a class A misdemeanor;
216 (b) class A misdemeanor is a third degree felony;
217 (c) third degree felony is a second degree felony;
218 (d) second degree felony is a first degree felony; and
219 (e) first degree felony is an [enhanced minimum] indeterminate prison term of not less than
220 nine years [in prison; and] and which may be for life.
221 [(f) capital offense for which a life sentence is imposed is a minimum term of 20 years in
222 prison.]
223 (4) Offenses referred to in Subsection (1) are:
224 (a) any criminal violation of Title 58, Chapter 37, 37a, 37b, or 37c, regarding drug-related
225 offenses;
226 (b) assault and related offenses under Title 76, Chapter 5, Part 1;
227 (c) any criminal homicide offense under Title 76, Chapter 5, Part 2;
228 (d) kidnapping and related offenses under Title 76, Chapter 5, Part 3;
229 (e) any felony sexual offense under Title 76, Chapter 5, Part 4;
230 (f) sexual exploitation of a minor as defined in Section 76-5a-3 ;
231 (g) any property destruction offense under Title 76, Chapter 6, Part 1;
232 (h) burglary, criminal trespass, and related offenses under Title 76, Chapter 6, Part 2;
233 (i) robbery and aggravated robbery under Title 76, Chapter 6, Part 3;
234 (j) theft and related offenses under Title 76, Chapter 6, Part 4;
235 (k) any fraud offense under Title 76, Chapter 6, Part 5, except Sections 76-6-503 ,
236 76-6-504 , 76-6-505 , 76-6-507 , 76-6-508 , 76-6-509 , 76-6-510 , 76-6-511 , 76-6-512 , 76-6-513 ,
237 76-6-514 , 76-6-516 , 76-6-517 , 76-6-518 , and 76-6-520 ;
238 (l) any offense of obstructing government operations under Title 76, Chapter 8, Part 3,
239 except Sections 76-8-302 , 76-8-303 , 76-8-304 , 76-8-307 , 76-8-308 , and 76-8-312 ;
240 (m) tampering with a witness or other violation of Section 76-8-508 ;
241 (n) extortion or bribery to dismiss criminal proceeding as defined in Section 76-8-509 ;
242 (o) any explosives offense under Title 76, Chapter 10, Part 3;
243 (p) any weapons offense under Title 76, Chapter 10, Part 5;
244 (q) pornographic and harmful materials and performances offenses under Title 76, Chapter

245 10, Part 12;
246 (r) prostitution and related offenses under Title 76, Chapter 10, Part 13;
247 (s) any violation of Title 76, Chapter 10, Part 15, Bus Passenger Safety Act;
248 (t) any violation of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
249 (u) communications fraud as defined in Section 76-10-1801 ;
250 (v) any violation of Title 76, Chapter 10, Part 19, Money Laundering and Currency
251 Transaction Reporting Act; and
252 (w) burglary of a research facility as defined in Section 76-10-2002 .
253 (5) It is not a bar to imposing the enhanced penalties under this section that the persons
254 with whom the actor is alleged to have acted in concert are not identified, apprehended, charged,
255 or convicted, or that any of those persons are charged with or convicted of a different or lesser
256 offense.
257 Section 3. Section 76-3-203.6 is enacted to read:
258 76-3-203.6. Enhanced penalty for certain offenses committed by prisoner.
259 (1) As used in this section, "serving a sentence" means a prisoner is sentenced and
260 committed to the custody of the Department of Corrections, the sentence has not been terminated
261 or voided, and the prisoner:
262 (a) has not been paroled; or
263 (b) is in custody after arrest for a parole violation.
264 (2) If the trier of fact finds beyond a reasonable doubt that a prisoner serving a sentence
265 for a capital felony or a first degree felony commits any offense listed in Subsection (3), the court
266 shall sentence the defendant to life in prison without parole. However, the court may sentence the
267 defendant to an indeterminate prison term of not less than 20 years and which may be for life if
268 the court finds that the interests of justice would best be served and states the specific
269 circumstances justifying the disposition on the record.
270 (3) Offenses referred to in Subsection (2) are:
271 (a) aggravated assault, Subsection 76-5-103 (2);
272 (b) mayhem, Section 76-5-105 ;
273 (c) attempted murder, Section 76-5-203 ;
274 (d) kidnapping, Section 76-5-301 ;
275 (e) child kidnapping, Section 76-5-301.1 ;

276 (f) aggravated kidnapping, Section 76-5-302 ;
277 (g) rape, Section 76-5-402 ;
278 (h) rape of a child, Section 76-5-402.1 ;
279 (i) object rape, Section 76-5-402.2 ;
280 (j) object rape of a child, Section 76-5-402.3 ;
281 (k) forcible sodomy, Section 76-5-403 ;
282 (l) sodomy on a child, Section 76-5-403.1 ;
283 (m) aggravated sexual abuse of a child, Section 76-5-404.1 ;
284 (n) aggravated sexual assault, Section 76-5-405 ;
285 (o) aggravated arson, Section 76-6-103 ;
286 (p) aggravated burglary, Section 76-6-203 ; and
287 (q) aggravated robbery, Section 76-6-302 .
288 Section 4. Section 76-3-206 is amended to read:
289 76-3-206. Capital felony -- Penalties.
290 (1) A person who has pled guilty to or been convicted of a capital felony shall be sentenced
291 in accordance with Section 76-3-207 . That sentence shall be death, [life imprisonment] an
292 indeterminate prison term of not less than 20 years and which may be for life, or, on or after April
293 27, 1992, life in prison without parole.
294 (2) (a) The judgment of conviction and sentence of death [shall be] is subject to automatic
295 review by the Utah State Supreme Court within 60 days after certification by the sentencing court
296 of the entire record unless time is extended an additional period not to exceed 30 days by the Utah
297 State Supreme Court for good cause shown. [Such]
298 (b) The review by the Utah State Supreme Court [shall have] has priority over all other
299 cases and shall be heard in accordance with rules promulgated by the Utah State Supreme Court.
300 Section 5. Section 76-3-207 is amended to read:
301 76-3-207. Capital felony -- Sentencing proceeding.
302 (1) (a) When a defendant has pled guilty to or been found guilty of a capital felony, there
303 shall be further proceedings before the court or jury on the issue of sentence.
304 (b) In the case of a plea of guilty to a capital felony, the sentencing proceedings shall be
305 conducted before a jury or, upon request of the defendant and with the approval of the court and
306 the consent of the prosecution, by the court which accepted the plea.

307 (c) (i) When a defendant has been found guilty of a capital felony, the proceedings shall
308 be conducted before the court or jury which found the defendant guilty, provided the defendant
309 may waive hearing before the jury with the approval of the court and the consent of the
310 prosecution, in which event the hearing shall be before the court.
311 (ii) If, however, circumstances make it impossible or impractical to reconvene the same
312 jury for the sentencing proceedings, the court may dismiss that jury and convene a new jury for the
313 proceedings.
314 (d) If a retrial of the sentencing proceedings is necessary as a consequence of a remand
315 from an appellate court, the sentencing authority shall be determined as provided in Subsection (5).
316 (2) (a) In capital sentencing proceedings, evidence may be presented on:
317 (i) the nature and circumstances of the crime;
318 (ii) the defendant's character, background, history, mental and physical condition;
319 (iii) the victim and the impact of the crime on the victim's family and community without
320 comparison to other persons or victims; and
321 (iv) any other facts in aggravation or mitigation of the penalty that the court considers
322 relevant to the sentence.
323 (b) Any evidence the court considers to have probative force may be received regardless
324 of its admissibility under the exclusionary rules of evidence. The state's attorney and the defendant
325 shall be permitted to present argument for or against the sentence of death.
326 (3) Aggravating circumstances include those outlined in Section 76-5-202 . Mitigating
327 circumstances include:
328 (a) the defendant has no significant history of prior criminal activity;
329 (b) the homicide was committed while the defendant was under the influence of mental
330 or emotional disturbance;
331 (c) the defendant acted under duress or under the domination of another person;
332 (d) at the time of the homicide, the capacity of the defendant to appreciate the
333 wrongfulness of his conduct or to conform his conduct to the requirement of law was impaired as
334 a result of mental disease, intoxication, or influence of drugs;
335 (e) the youth of the defendant at the time of the crime;
336 (f) the defendant was an accomplice in the homicide committed by another person and the
337 defendant's participation was relatively minor; and

338 (g) any other fact in mitigation of the penalty.
339 (4) (a) The court or jury, as the case may be, shall retire to consider the penalty. Except
340 as provided in Subsection 76-3-207.5 (2), in all proceedings before a jury, under this section, it
341 shall be instructed as to the punishment to be imposed upon a unanimous decision for death and
342 that the penalty of either [life in prison] an indeterminate prison term of not less than 20 years and
343 which may be for life or life in prison without parole, shall be imposed if a unanimous decision
344 for death is not found.
345 (b) The death penalty shall only be imposed if, after considering the totality of the
346 aggravating and mitigating circumstances, the jury is persuaded beyond a reasonable doubt that
347 total aggravation outweighs total mitigation, and is further persuaded, beyond a reasonable doubt,
348 that the imposition of the death penalty is justified and appropriate in the circumstances. If the jury
349 reports unanimous agreement to impose the sentence of death, the court shall discharge the jury
350 and shall impose the sentence of death.
351 (c) If the jury is unable to reach a unanimous decision imposing the sentence of death[,
352 except as provided in Subsection 76-3-207.5 (2)] or the state is not seeking the death penalty, the
353 jury shall then determine whether the penalty of life in prison without parole shall be imposed,
354 except as provided in Subsection 76-3-207.5 (2). The penalty of life in prison without parole shall
355 only be imposed if the jury determines that the sentence of life in prison without parole is
356 appropriate. If the jury reports agreement by ten jurors or more to impose the sentence of life in
357 prison without parole, the court shall discharge the jury and shall impose the sentence of life in
358 prison without parole. If ten jurors or more do not agree upon a sentence of life in prison without
359 parole, the court shall discharge the jury and impose [the sentence of life imprisonment with the
360 possibility of parole] an indeterminate prison term of not less than 20 years and which may be for
361 life.
362 (d) If the defendant waives hearing before the jury as to sentencing, with the approval of
363 the court and the consent of the prosecution, the court shall determine the appropriate penalty
364 according to the standards of this Subsection (4)(d).
365 (5) Upon any appeal by the defendant where the sentence is of death, the appellate court,
366 if it finds prejudicial error in the sentencing proceeding only, may set aside the sentence of death
367 and remand the case to the trial court for new sentencing proceedings to the extent necessary to
368 correct the error or errors. No error in the sentencing proceedings shall result in the reversal of the

369 conviction of a capital felony. In cases of remand for new sentencing proceedings, all exhibits and
370 a transcript of all testimony and other evidence properly admitted in the prior trial and sentencing
371 proceedings shall be admissible in the new sentencing proceedings, and if the sentencing
372 proceeding was before a:
373 (a) jury, a new jury shall be impaneled for the new sentencing proceeding unless the
374 defendant waives the hearing before the jury with the approval of the court and the consent of the
375 prosecution, in which case the proceeding shall be held according to Subsection (5)(b) or (c), as
376 applicable;
377 (b) judge, the original trial judge shall conduct the new sentencing proceeding; or
378 (c) judge, and the original trial judge is unable or unavailable to conduct a new sentencing
379 proceeding, then another judge shall be designated to conduct the new sentencing proceeding, and
380 the new proceeding will be before a jury unless the defendant waives the hearing before the jury
381 with the approval of the court and the consent of the prosecution.
382 (6) In the event the death penalty is held to be unconstitutional by the Utah Supreme Court
383 or the United States Supreme Court, the court having jurisdiction over a person previously
384 sentenced to death for a capital felony shall cause the person to be brought before the court, and
385 the court shall sentence the person to [life in prison] an indeterminate prison term of not less than
386 20 years and which may be for life, if the death penalty is held unconstitutional prior to April 27,
387 1992, or life in prison without parole if the death penalty is held unconstitutional on or after April
388 27, 1992, and any person who is thereafter convicted of a capital felony shall be sentenced to [life
389 in prison] an indeterminate prison term of not less than 20 years and which may be for life or life
390 in prison without parole.
391 Section 6. Section 76-3-207.5 is amended to read:
392 76-3-207.5. Applicability -- Effect on sentencing -- Options of offenders.
393 (1) (a) The sentencing option of life without parole provided in Sections 76-3-201 and
394 76-3-207 applies only to those capital [offenses] felonies for which the offender is sentenced on
395 or after April 27, 1992.
396 (b) The sentencing option of life without parole provided in Sections 76-3-201 and
397 76-3-207 has no effect on sentences imposed in capital cases prior to April 27, 1992.
398 (2) An offender, who commits a capital [offense] felony prior to April 27, 1992, but is
399 sentenced on or after April 27, 1992, shall be given the option, prior to a sentencing hearing

400 pursuant to Section 76-3-207 , to proceed either under the law which was in effect at the time the
401 offense was committed or under the additional sentencing option of life in prison without parole
402 provided in Sections 76-3-201 and 76-3-207 .
403 Section 7. Section 76-4-201 is amended to read:
404 76-4-201. Conspiracy -- Elements of offense.
405 For purposes of this part a person is guilty of conspiracy when he, intending that conduct
406 constituting a crime be performed, agrees with one or more persons to engage in or cause the
407 performance of [such] the conduct and any one of them commits an overt act in pursuance of the
408 conspiracy, except where the offense is a capital [offense] felony, a felony against the person,
409 arson, burglary, or robbery, the overt act is not required for the commission of conspiracy.
410 Section 8. Section 76-5-202 is amended to read:
411 76-5-202. Aggravated murder.
412 (1) Criminal homicide constitutes aggravated murder if the actor intentionally or
413 knowingly causes the death of another under any of the following circumstances:
414 (a) the homicide was committed by a person who is confined in a jail or other correctional
415 institution;
416 (b) the homicide was committed incident to one act, scheme, course of conduct, or
417 criminal episode during which two or more persons were killed, or during which the actor
418 attempted to kill one or more persons in addition to the victim who was killed;
419 (c) the actor knowingly created a great risk of death to a person other than the victim and
420 the actor;
421 (d) the homicide was committed while the actor was engaged in the commission of, or an
422 attempt to commit, or flight after committing or attempting to commit, aggravated robbery,
423 robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
424 a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
425 abuse as defined in Subsection 76-5-109 (2)(a), or aggravated sexual assault, aggravated arson,
426 arson, aggravated burglary, burglary, aggravated [kidnaping] kidnapping, [kidnaping] kidnapping,
427 or child [kidnaping] kidnapping;
428 (e) the homicide was committed for the purpose of avoiding or preventing an arrest of the
429 defendant or another by a peace officer acting under color of legal authority or for the purpose of
430 effecting the defendant's or another's escape from lawful custody;

431 (f) the homicide was committed for pecuniary or other personal gain;
432 (g) the defendant committed, or engaged or employed another person to commit the
433 homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
434 for commission of the homicide;
435 (h) the actor was previously convicted of [aggravated murder, murder, or of a felony
436 involving the use or threat of violence to a person. For the purpose of this subsection an offense
437 committed in another jurisdiction, which if committed in Utah would be punishable as aggravated
438 murder or murder, is considered aggravated murder or murder;]:
439 (i) aggravated murder, Section 76-5-202 ;
440 (ii) murder, Section 76-5-203 ;
441 (iii) aggravated assault, Subsection 76-5-103 (2);
442 (iv) mayhem, Section 76-5-105 ;
443 (v) attempted murder, Section 76-5-203 ;
444 (vi) kidnapping, Section 76-5-301 ;
445 (vii) child kidnapping, Section 76-5-301.1 ;
446 (viii) aggravated kidnapping, Section 76-5-302 ;
447 (ix) rape, Section 76-5-402 ;
448 (x) rape of a child, Section 76-5-402.1 ;
449 (xi) object rape, Section 76-5-402.2 ;
450 (xii) object rape of a child, Section 76-5-402.3 ;
451 (xiii) forcible sodomy, Section 76-5-403 ;
452 (xiv) sodomy on a child, Section 76-5-403.1 ;
453 (xv) aggravated sexual abuse of a child, Section 76-5-404.1 ;
454 (xvi) aggravated sexual assault, Section 76-5-405 ;
455 (xvii) aggravated arson, Section 76-6-103 ;
456 (xviii) aggravated burglary, Section 76-6-203 ;
457 (xix) aggravated robbery, Section 76-6-302 ; or
458 (xx) an offense committed in another jurisdiction which if committed in this state would
459 be a violation of a crime listed in Subsection (1)(h);
460 (i) the homicide was committed for the purpose of:
461 (i) preventing a witness from testifying;

462 (ii) preventing a person from providing evidence or participating in any legal proceedings
463 or official investigation;
464 (iii) retaliating against a person for testifying, providing evidence, or participating in any
465 legal proceedings or official investigation; or
466 (iv) disrupting or hindering any lawful governmental function or enforcement of laws;
467 (j) the victim is or has been a local, state, or federal public official, or a candidate for
468 public office, and the homicide is based on, is caused by, or is related to that official position, act,
469 capacity, or candidacy;
470 (k) the victim is or has been a peace officer, law enforcement officer, executive officer,
471 prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror, probation
472 officer, or parole officer, and the victim is either on duty or the homicide is based on, is caused by,
473 or is related to that official position, and the actor knew, or reasonably should have known, that
474 the victim holds or has held that official position;
475 (l) the homicide was committed by means of a destructive device, bomb, explosive,
476 incendiary device, or similar device which was planted, hidden, or concealed in any place, area,
477 dwelling, building, or structure, or was mailed or delivered;
478 (m) the homicide was committed during the act of unlawfully assuming control of any
479 aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
480 valuable consideration for the release of the public conveyance or any passenger, crew member,
481 or any other person aboard, or to direct the route or movement of the public conveyance or
482 otherwise exert control over the public conveyance;
483 (n) the homicide was committed by means of the administration of a poison or of any
484 lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
485 (o) the victim was a person held or otherwise detained as a shield, hostage, or for ransom;
486 or
487 [(p) the actor was under a sentence of life imprisonment or a sentence of death at the time
488 of the commission of the homicide; or]
489 [(q)] (p) the homicide was committed in an especially heinous, atrocious, cruel, or
490 exceptionally depraved manner, any of which must be demonstrated by physical torture, serious
491 physical abuse, or serious bodily injury of the victim before death.
492 (2) Aggravated murder is a capital [offense] felony.

493 (3) (a) It is an affirmative defense to a charge of aggravated murder or attempted
494 aggravated murder that the defendant caused the death of another or attempted to cause the death
495 of another:
496 (i) under the influence of extreme emotional distress for which there is a reasonable
497 explanation or excuse; or
498 (ii) under a reasonable belief that the circumstances provided a legal justification or excuse
499 for his conduct although the conduct was not legally justifiable or excusable under the existing
500 circumstances.
501 (b) Under Subsection (3)(a)(i), emotional distress does not include:
502 (i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
503 (ii) distress that is substantially caused by the defendant's own conduct.
504 (c) The reasonableness of an explanation or excuse under Subsection (3)(a)(i) or the
505 reasonable belief of the actor under Subsection (3)(a)(ii) shall be determined from the viewpoint
506 of a reasonable person under the then existing circumstances.
507 (d) This affirmative defense reduces charges only as follows:
508 (i) aggravated murder to murder; and
509 (ii) attempted aggravated murder to attempted murder.
510 Section 9. Section 76-8-306 is amended to read:
511 76-8-306. Obstructing justice -- Penalties.
512 (1) A person is guilty of an offense if, with intent to hinder, prevent, or delay the
513 discovery, apprehension, prosecution, conviction, or punishment of another for the commission
514 of a crime, he:
515 (a) knowing an offense has been committed, conceals it from a magistrate;
516 (b) harbors or conceals the offender;
517 (c) provides the offender a weapon;
518 (d) provides the offender transportation, disguise, or other means for avoiding discovery
519 or apprehension;
520 (e) warns the offender of impending discovery or apprehension;
521 (f) conceals, destroys, or alters any physical evidence that might aid in the discovery,
522 apprehension, or conviction of the offender;
523 (g) obstructs by force, intimidation, or deception anyone from performing an act that might

524 aid in the discovery, apprehension, prosecution, or conviction of the offender; or
525 (h) having knowledge that a law enforcement officer has been authorized or has applied
526 for authorization under either Section 77-23a-10 or 77-23a-15 to intercept a wire, electronic, or
527 oral communication, gives notice or attempts to give notice of the possible interception to any
528 person.
529 (2) Except as provided under Subsection (3), an offense under:
530 (a) Subsection (1)(a) or Subsections (1)(d) through (g) is a class B misdemeanor;
531 (b) Subsection (1)(b) regarding harboring or concealing the offender is a class A
532 misdemeanor, except as provided in Subsection (6); and
533 (c) Subsection (1)(c) regarding providing a weapon is a third degree felony.
534 (3) (a) If the person committing an offense under Subsection (1)(a) or Subsections (1)(d)
535 through (g) knows that the offender has committed a second or third degree felony, the offense is
536 a class A misdemeanor.
537 (b) If the person committing an offense under Subsection (1)(b) regarding harboring or
538 concealing the offender knows the offender has committed a second or third degree felony, the
539 offense is a third degree felony.
540 (c) If the person committing an offense under Subsection (1)(c) regarding providing a
541 weapon knows the offender has committed a second or third degree felony, the offense is a second
542 degree felony.
543 (d) If the person committing an offense under Subsections (1)(a) through (g) knows the
544 offender has committed a capital [offense] felony or a felony of the first degree, the offense is a
545 second degree felony.
546 (4) An offense under Subsection (1)(h) is a third degree felony.
547 (5) Subsection (1)(f) does not apply to an act against a juror. Obstructing the function of
548 a juror is addressed in Section 76-8-508.5 .
549 (6) A person is guilty of a third degree felony who:
550 (a) harbors or conceals an offender who has absconded from a facility or from supervision
551 as these offenses are defined in Section 76-8-309.5 ; or
552 (b) has escaped from official custody as defined in Section 76-8-309 .
553 (7) The provisions of Section 76-8-316 govern an act or threat against a judge or a member
554 of the Board of Pardons and Parole or the judge's or member's immediate family.

555 Section 10. Section 76-8-316 is amended to read:
556 76-8-316. Influencing, impeding, or retaliating against a judge or member of the
557 Board of Pardons and Parole.
558 (1) A person is guilty of a third degree felony if the person threatens to assault, kidnap, or
559 murder a judge or a member of the Board of Pardons and Parole with the intent to impede,
560 intimidate, or interfere with the judge or member of the board while engaged in the performance
561 of the judge's or member's official duties or with the intent to retaliate against the judge or member
562 on account of the performance of those official duties.
563 (2) A person is guilty of a second degree felony if the person commits an assault on a judge
564 or a member of the Board of Pardons and Parole with the intent to impede, intimidate, or interfere
565 with the judge or member of the board while engaged in the performance of the judge's or
566 member's official duties, or with the intent to retaliate against the judge or member on account of
567 the performance of those official duties.
568 (3) A person is guilty of a first degree felony if the person commits aggravated assault or
569 attempted murder on a judge or a member of the Board of Pardons and Parole with the purpose to
570 impede, intimidate, or interfere with the judge or member of the board while engaged in the
571 performance of the judge's or member's official duties or with the purpose to retaliate against the
572 judge or member on account of the performance of those official duties.
573 (4) As used in this section:
574 (a) "Immediate family" means parents, spouse, surviving spouse, children, and siblings of
575 the officer.
576 (b) "Judge" means judges of all courts of record and courts not of record.
577 (c) "Judge or member" includes the members of the judge's or member's immediate family.
578 (d) "Member of the Board of Pardons and Parole" means appointed members of the board.
579 (5) A member of the Board of Pardons and Parole is an executive officer for purposes of
580 [Subsections] Subsection 76-5-202 (1)(k).
581 Section 11. Section 77-16a-201 is amended to read:
582 77-16a-201. Probation.
583 (1) (a) When the court proposes to place on probation a defendant who has pled or is found
584 guilty and mentally ill, it shall request UDC to provide a presentence investigation report regarding
585 whether probation is appropriate for that defendant and, if so, recommending a specific treatment

586 program. If the defendant is placed on probation, that treatment program shall be made a condition
587 of probation, and the defendant shall remain under the jurisdiction of the sentencing court.
588 (b) The court may not place a mentally ill offender who has been convicted of a capital
589 [offense] felony on probation.
590 (2) The period of probation may be for no less than five years, or until the expiration of
591 the defendant's sentence, whichever occurs first. Probation may not be subsequently reduced by
592 the sentencing court without consideration of an updated report on the mental health status of the
593 defendant.
594 (3) (a) Treatment ordered by the court under this section may be provided by or under
595 contract with the department, a mental health facility, a local mental health authority, or, with the
596 approval of the sentencing court, any other public or private mental health provider.
597 (b) The entity providing treatment under this section shall file a report with the defendant's
598 probation officer at least every six months during the term of probation.
599 (c) Any request for termination of probation regarding a defendant who is receiving
600 treatment under this section shall include a current mental health report prepared by the treatment
601 provider.
602 (4) Failure to continue treatment or any other condition of probation, except by agreement
603 with the entity providing treatment and the sentencing court, is a basis for initiating probation
604 violation hearings.
605 (5) The court may not release a mentally ill offender into the community, as a part of
606 probation, if it finds by clear and convincing evidence that he:
607 (a) poses an immediate physical danger to himself or others, including jeopardizing his
608 own or others' safety, health, or welfare if released into the community; or
609 (b) lacks the ability to provide the basic necessities of life, such as food, clothing, and
610 shelter, if released into the community.
611 (6) A mentally ill offender who is not eligible for release into the community under the
612 provisions of Subsection (5) may be placed by the court, on probation, in an appropriate mental
613 health facility.
614 Section 12. Section 77-16a-202 is amended to read:
615 77-16a-202. Person found guilty and mentally ill -- Commitment to department --
616 Admission to Utah State Hospital.

617 (1) In sentencing and committing a mentally ill offender to the department under
618 Subsection 77-16a-104 (3)(a), the court shall:
619 (a) sentence the offender to a term of imprisonment and order that he be committed to the
620 department and admitted to the Utah State Hospital for care and treatment until transferred to UDC
621 in accordance with Sections 77-16a-203 and 77-16a-204 , making provision for readmission to the
622 Utah State Hospital whenever the requirements and conditions of Section 77-16a-204 are met; or
623 (b) sentence the offender to a term of imprisonment and order that he be committed to the
624 department for care and treatment for no more than 18 months, or until the offender's condition
625 has been stabilized to the point that commitment to the department and admission to the Utah State
626 Hospital is no longer necessary to ensure adequate mental health treatment, whichever occurs first.
627 At the expiration of that time, the court may recall the sentence and commitment, and resentence
628 the offender. A commitment and retention of jurisdiction under this Subsection (1)(b) shall be
629 specified in the sentencing order. If that specification is not included in the sentencing order, the
630 offender shall be committed in accordance with Subsection (1)(a).
631 (2) The court may not retain jurisdiction, under Subsection (1)(b), over the sentence of a
632 mentally ill offender who has been convicted of a capital [offense] felony. In capital cases, the
633 court shall make the findings required by this section after the capital sentencing proceeding
634 mandated by Section 76-3-207 .
635 (3) When an offender is committed to the department and admitted to the Utah State
636 Hospital under Subsection (1)(b), the department shall provide the court with reports of the
637 offender's mental health status every six months. Those reports shall be prepared in accordance
638 with the requirements of Section 77-16a-203 . Additionally, the court may appoint an independent
639 examiner to assess the mental health status of the offender.
640 (4) The period of commitment to the department and admission to the Utah State Hospital,
641 and any subsequent retransfers to the Utah State Hospital made pursuant to Section 77-16a-204
642 may not exceed the maximum sentence imposed by the court. Upon expiration of that sentence,
643 the administrator of the facility where the offender is located may initiate civil proceedings for
644 involuntary commitment in accordance with Title 62A, Chapter 12 or Title 62A, Chapter 5.
645 Section 13. Section 77-18-5.5 is amended to read:
646 77-18-5.5. Judgment of death -- Defendant to select method -- Time of selection.
647 When a person is convicted of a capital [offense] felony and the judgment of death has

648 been imposed, the defendant is entitled to select, at the time of sentencing, either a firing squad or
649 a lethal intravenous injection as the method of execution. If the defendant does not indicate a
650 preference at that time to the court, the judgment of death shall be executed by lethal intravenous
651 injection.
652 Section 14. Section 77-20-1 is amended to read:
653 77-20-1. Right to bail -- Denial of bail -- Hearing.
654 (1) A person charged with or arrested for a criminal offense shall be admitted to bail as
655 a matter of right, except if the person is charged with a:
656 (a) capital [offense] felony, when the court finds there is substantial evidence to support
657 the charge;
658 (b) felony committed while on probation or parole, or while free on bail awaiting trial on
659 a previous felony charge, when the court finds there is substantial evidence to support the current
660 felony charge;
661 (c) felony when there is substantial evidence to support the charge and the court finds by
662 clear and convincing evidence that the person would constitute a substantial danger to any other
663 person or to the community, or is likely to flee the jurisdiction of the court, if released on bail; or
664 (d) felony when the court finds there is substantial evidence to support the charge and it
665 finds by clear and convincing evidence that the person violated a material condition of release
666 while previously on bail.
667 (2) Any person who may be admitted to bail may be released either on his own
668 recognizance or upon posting bail, on condition that he appear in court for future court proceedings
669 in the case, and on any other conditions imposed in the discretion of the magistrate or court that
670 will reasonably:
671 (a) ensure the appearance of the accused;
672 (b) ensure the integrity of the court process;
673 (c) prevent direct or indirect contact with witnesses or victims by the accused, if
674 appropriate; and
675 (d) ensure the safety of the public.
676 (3) The initial order denying or fixing the amount of bail shall be issued by the magistrate
677 or court issuing the warrant of arrest or by the magistrate or court presiding over the accused's first
678 judicial appearance. The magistrate or court may rely upon information contained in:

679 (a) the indictment or information;
680 (b) any sworn probable cause statement;
681 (c) information provided by any pretrial services agency; or
682 (d) any other reliable record or source.
683 (4) A motion to modify the initial order may be made by a party at any time upon notice
684 to the opposing party sufficient to permit the opposing party to prepare for hearing and to permit
685 any victim to be notified and be present. Hearing on a motion to modify may be held in
686 conjunction with a preliminary hearing or any other pretrial hearing. The magistrate or court may
687 rely on information as provided in Subsections (3)(a) through (d) and may base its ruling on
688 evidence provided at the hearing so long as each party is provided an opportunity to present
689 additional evidence or information relevant to bail.
690 (5) Subsequent motions to modify bail orders may be made only upon a showing that there
691 has been a material change in circumstances.
692 (6) An appeal may be taken from an order of any court denying bail to the Supreme Court,
693 which shall review the determination under Subsection (1).
694 Section 15. Section 77-32-201 is amended to read:
695 77-32-201. Definitions.
696 For the purposes of this chapter:
697 (1) "Board" means the Indigent Defense Funds Board created in Section 77-32-401 .
698 (2) "Indigent" means a person qualifying as an indigent under indigency standards
699 established in Part 3, Counsel for Indigents.
700 (3) "Participating county" means a county which has complied with the provisions of this
701 chapter for participation in the Indigent Capital Defense Trust Fund as provided in Sections
702 77-32-602 and 77-32-603 or the Indigent Felony Defense Trust Fund as provided in Sections
703 77-32-702 and 77-32-703 .
704 (4) "Serious offense" means a felony or capital [offense] felony.
705 Section 16. Section 77-32-601 is amended to read:
706 77-32-601. Establishment of Indigent Capital Defense Trust Fund -- Use of fund --
707 Compensation for indigent legal defense from fund.
708 (1) For purposes of this part, "fund" means the Indigent Capital Defense Trust Fund.
709 (2) There is established an expendable trust fund known as the Indigent Capital Defense

710 Trust Fund which shall be nonlapsing and shall be disbursed by the Division of Finance at the
711 direction of the board and subject to the provisions of this chapter.
712 (3) The fund consists of:
713 (a) monies received from participating counties as provided in Sections 77-32-602 and
714 77-32-603 ;
715 (b) appropriations made to the fund by the Legislature as provided in Section 77-32-603 ;
716 and
717 (c) interest and earnings from the investment of fund monies.
718 (4) Fund monies shall be invested by the state treasurer with the earnings and interest
719 accruing to the fund.
720 (5) The fund shall be used to assist participating counties with financial resources, as
721 provided in Subsection (6), to fulfill their constitutional and statutory mandates for the provision
722 of an adequate defense for indigents prosecuted for the violation of state laws in cases involving
723 capital [offenses] felonies.
724 (6) Monies allocated to or deposited in this fund shall be used only:
725 (a) to reimburse participating counties for expenditures made for an attorney appointed to
726 represent an indigent, other than a state inmate in a state prison, prosecuted for a capital [offense]
727 felony in a participating county; and
728 (b) for administrative costs pursuant to Section 77-32-401 .
729 Section 17. Section 77-32-604 is amended to read:
730 77-32-604. Application and qualification for fund money.
731 (1) Any participating county may apply to the board for benefits from the fund if that
732 county has incurred, or reasonably anticipates incurring, expenses in the defense of an indigent for
733 capital [offenses] felonies in violation of state law arising out of a single criminal episode.
734 (2) No application shall be made nor benefits provided from the fund for cases filed before
735 September 1, 1998.
736 (3) If the application of a participating county is approved by the board, the board shall
737 negotiate, enter into, and administer a contract with counsel for the indigent and costs incurred for
738 the defense of that indigent, including fees for counsel and reimbursement for defense costs
739 incurred by defense counsel.
740 (4) Nonparticipating counties are responsible for paying indigent costs in their county and

741 shall not be eligible for any legislative relief. However, nonparticipating counties may provide for
742 payment of indigent costs through an increase in the county tax levy as provided in Section
743 77-32-307 .
744 (5) This part may not become effective unless the board has received resolutions before
745 August 1, 1998, from at least 15 counties adopted as described in Subsection 77-32-602 (2).
746 Section 18. Section 78-46-5 is amended to read:
747 78-46-5. Trial by jury.
748 (1) A trial jury [shall consist] consists of:
749 (a) twelve persons in a capital case;
750 (b) eight persons in a criminal case which carries a term of incarceration of more than one
751 year as a possible sentence for the most serious offense charged;
752 (c) six persons in a criminal case which carries a term of incarceration of more than six
753 months but not more than one year as a possible sentence for the most serious offense charged;
754 (d) four persons in a criminal case which carries a term of incarceration of six months or
755 less as a possible sentence for the most serious offense charged; and
756 (e) eight persons in a civil case at law except that the jury shall be four persons in a civil
757 case for damages of less than $20,000, exclusive of costs, interest, and attorney fees.
758 (2) Except in the trial of a capital [offense] felony, the parties may stipulate upon the
759 record to a jury of a lesser number than established by this section.
760 (3) (a) The verdict in a criminal case shall be unanimous.
761 (b) The verdict in a civil case shall be by not less than three-fourths of the jurors.
762 (4) There is no jury in the trial of small claims cases.
763 (5) There is no jury in the adjudication of a minor charged with what would constitute a
764 crime if committed by an adult.
765 Section 19. Repealer.
766 This act repeals:
767 Section 76-5-103.5, Aggravated assault by prisoner.

Legislative Review Note
as of 1-16-01 3:09 PM

A limited legal review of this legislation raises no obvious constitutional or statutory concerns.

Office of Legislative Research and General Counsel