H.B. 37

This document includes House Committee Amendments incorporated into the bill on Mon, Feb 9, 2009 at 12:12 PM by ddonat. --> 1

VIOLENT OFFENSES AMENDMENTS
2 2009 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: Jennifer M. Seelig
5 Senate Sponsor: Jon J. Greiner
6
7 LONG TITLE
8 Committee Note:
9 The Law Enforcement and Criminal Justice Interim Committee recommended this bill.
10 General Description:
11 This bill modifies provisions of the Criminal Code, including a felony committed with
12 other persons, aggravated murder, predicate criminal gang offenses, and the offense of
13 felony discharge of a firearm.
14 Highlighted Provisions:
15 This bill:
16 . amends the enhanced penalty for committing a first degree felony with other
17 persons by imposing five more years imprisonment in addition to the statutory
18 minimum term of imprisonment for the felony;
19 . amends the elements of aggravated murder to include felony discharge of a firearm;
20 . amends the definition of predicate gang offenses that constitute criminal gang
21 activity in defined circumstances to include retail theft;
22 . adds the offense of retail theft to the offenses subject to an enhanced penalty if
23 committed with two or more persons; and
24 . amends the offense of felony discharge of a firearm to include situations that
25 constitute criminal homicide or attempted criminal homicide.
26 Monies Appropriated in this Bill:
27 None

28 Other Special Clauses:
29 None
30 Utah Code Sections Affected:
31 AMENDS:
32 76-3-203.1, as last amended by Laws of Utah 2005, Chapter 93
33 76-5-202, as last amended by Laws of Utah 2008, Chapter 12
34 76-9-802, as enacted by Laws of Utah 2008, Chapter 15
35 76-10-508.1, as enacted by Laws of Utah 2008, Chapter 296
36
37 Be it enacted by the Legislature of the state of Utah:
38 Section 1. Section 76-3-203.1 is amended to read:
39 76-3-203.1. Offenses committed in concert with two or more persons -- Notice --
40 Enhanced penalties.
41 (1) (a) A person who commits any offense listed in Subsection (4) is subject to an
42 enhanced penalty for the offense as provided in Subsection (3) if the trier of fact finds beyond a
43 reasonable doubt that the person acted in concert with two or more persons.
44 (b) "In concert with two or more persons" as used in this section means the defendant
45 was aided or encouraged by at least two other persons in committing the offense and was aware
46 that he was so aided or encouraged, and each of the other persons:
47 (i) was physically present; or
48 (ii) participated as a party to any offense listed in Subsection (4).
49 (c) For purposes of Subsection (1)(b)(ii):
50 (i) other persons participating as parties need not have the intent to engage in the same
51 offense or degree of offense as the defendant; and
52 (ii) a minor is a party if the minor's actions would cause him to be a party if he were an
53 adult.
54 (2) The prosecuting attorney, or grand jury if an indictment is returned, shall cause to
55 be subscribed upon the information or indictment notice that the defendant is subject to the
56 enhanced penalties provided under this section.
57 (3) The enhanced penalty for a:
58 (a) class B misdemeanor is a class A misdemeanor;

59 (b) class A misdemeanor is a third degree felony;
60 (c) third degree felony is a second degree felony;
61 (d) second degree felony is a first degree felony; and
62 (e) first degree felony is an indeterminate prison term of not less than [nine years] five
63 years in addition to the statutory minimum prison term for the offense, and which may be for
64 life.
65 (4) Offenses referred to in Subsection (1) are:
66 (a) any criminal violation of Title 58, Chapter 37, 37a, 37b, or 37c, regarding
67 drug-related offenses;
68 (b) assault and related offenses under Title 76, Chapter 5, Part 1, Assault and Related
69 Offenses;
70 (c) any criminal homicide offense under Title 76, Chapter 5, Part 2, Criminal
71 Homicide;
72 (d) kidnapping and related offenses under Title 76, Chapter 5, Part 3, Kidnapping,
73 Trafficking, and Smuggling;
74 (e) any felony sexual offense under Title 76, Chapter 5, Part 4, H. [ Enticement of a Minor ]
74a Sexual Offenses .H ;
75 (f) sexual exploitation of a minor as defined in Section 76-5a-3 ;
76 (g) any property destruction offense under Title 76, Chapter 6, Part 1, Property
77 Destruction;
78 (h) burglary, criminal trespass, and related offenses under Title 76, Chapter 6, Part 2,
79 Burglary and Criminal Trespass;
80 (i) robbery and aggravated robbery under Title 76, Chapter 6, Part 3, Robbery;
81 (j) theft and related offenses under Title 76, Chapter 6, Part 4, Theft, or Part 6, Retail
82 Theft;
83 (k) any fraud offense under Title 76, Chapter 6, Part 5, except Sections 76-6-504 ,
84 76-6-505 , 76-6-507 , 76-6-508 , 76-6-509 , 76-6-510 , 76-6-511 , 76-6-512 , 76-6-513 , 76-6-514 ,
85 76-6-516 , 76-6-517 , 76-6-518 , and 76-6-520 ;
86 (l) any offense of obstructing government operations under Title 76, Chapter 8, Part 3,
87 except Sections 76-8-302 , 76-8-303 , 76-8-304 , 76-8-307 , 76-8-308 , and 76-8-312 ;
88 (m) tampering with a witness or other violation of Section 76-8-508 ;
89 (n) extortion or bribery to dismiss criminal proceeding as defined in Section 76-8-509 ;

90 (o) any explosives offense under Title 76, Chapter 10, Part 3, Explosives;
91 (p) any weapons offense under Title 76, Chapter 10, Part 5, Weapons;
92 (q) pornographic and harmful materials and performances offenses under Title 76,
93 Chapter 10, Part 12, Pornographic and Harmful Materials and Performances;
94 (r) prostitution and related offenses under Title 76, Chapter 10, Part 13, Prostitution;
95 (s) any violation of Title 76, Chapter 10, Part 15, Bus Passenger Safety Act;
96 (t) any violation of Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
97 (u) communications fraud as defined in Section 76-10-1801 ;
98 (v) any violation of Title 76, Chapter 10, Part 19, Money Laundering and Currency
99 Transaction Reporting Act; and
100 (w) burglary of a research facility as defined in Section 76-10-2002 .
101 (5) It is not a bar to imposing the enhanced penalties under this section that the persons
102 with whom the actor is alleged to have acted in concert are not identified, apprehended,
103 charged, or convicted, or that any of those persons are charged with or convicted of a different
104 or lesser offense.
105 Section 2. Section 76-5-202 is amended to read:
106 76-5-202. Aggravated murder.
107 (1) Criminal homicide constitutes aggravated murder if the actor intentionally or
108 knowingly causes the death of another under any of the following circumstances:
109 (a) the homicide was committed by a person who is confined in a jail or other
110 correctional institution;
111 (b) the homicide was committed incident to one act, scheme, course of conduct, or
112 criminal episode during which two or more persons were killed, or during which the actor
113 attempted to kill one or more persons in addition to the victim who was killed;
114 (c) the actor knowingly created a great risk of death to a person other than the victim
115 and the actor;
116 (d) the homicide was committed incident to an act, scheme, course of conduct, or
117 criminal episode during which the actor committed or attempted to commit aggravated robbery,
118 robbery, rape, rape of a child, object rape, object rape of a child, forcible sodomy, sodomy upon
119 a child, forcible sexual abuse, sexual abuse of a child, aggravated sexual abuse of a child, child
120 abuse as defined in Subsection 76-5-109 (2)(a), or aggravated sexual assault, aggravated arson,

121 arson, aggravated burglary, burglary, aggravated kidnapping, or kidnapping, or child
122 kidnapping;
123 (e) the homicide was committed incident to one act, scheme, course of conduct, or
124 criminal episode during which the actor committed the crime of abuse or desecration of a dead
125 human body as defined in Subsection 76-9-704 (2)(e);
126 (f) the homicide was committed for the purpose of avoiding or preventing an arrest of
127 the defendant or another by a peace officer acting under color of legal authority or for the
128 purpose of effecting the defendant's or another's escape from lawful custody;
129 (g) the homicide was committed for pecuniary gain;
130 (h) the defendant committed, or engaged or employed another person to commit the
131 homicide pursuant to an agreement or contract for remuneration or the promise of remuneration
132 for commission of the homicide;
133 (i) the actor previously committed or was convicted of:
134 (i) aggravated murder[, Section 76-5-202 ] under this section;
135 (ii) attempted aggravated murder[, Section 76-5-202 ] under this section;
136 (iii) murder, Section 76-5-203 ;
137 (iv) attempted murder, Section 76-5-203 ; or
138 (v) an offense committed in another jurisdiction which if committed in this state would
139 be a violation of a crime listed in this Subsection (1)(i);
140 (j) the actor was previously convicted of:
141 (i) aggravated assault, Subsection 76-5-103 (2);
142 (ii) mayhem, Section 76-5-105 ;
143 (iii) kidnapping, Section 76-5-301 ;
144 (iv) child kidnapping, Section 76-5-301.1 ;
145 (v) aggravated kidnapping, Section 76-5-302 ;
146 (vi) rape, Section 76-5-402 ;
147 (vii) rape of a child, Section 76-5-402.1 ;
148 (viii) object rape, Section 76-5-402.2 ;
149 (ix) object rape of a child, Section 76-5-402.3 ;
150 (x) forcible sodomy, Section 76-5-403 ;
151 (xi) sodomy on a child, Section 76-5-403.1 ;

152 (xii) aggravated sexual abuse of a child, Section 76-5-404.1 ;
153 (xiii) aggravated sexual assault, Section 76-5-405 ;
154 (xiv) aggravated arson, Section 76-6-103 ;
155 (xv) aggravated burglary, Section 76-6-203 ;
156 (xvi) aggravated robbery, Section 76-6-302 ; [or]
157 (xvii) felony discharge of a firearm, Section 76-10-508.1 ; or
158 [(xvii)] (xviii) an offense committed in another jurisdiction which if committed in this
159 state would be a violation of a crime listed in this Subsection (1)(j);
160 (k) the homicide was committed for the purpose of:
161 (i) preventing a witness from testifying;
162 (ii) preventing a person from providing evidence or participating in any legal
163 proceedings or official investigation;
164 (iii) retaliating against a person for testifying, providing evidence, or participating in
165 any legal proceedings or official investigation; or
166 (iv) disrupting or hindering any lawful governmental function or enforcement of laws;
167 (l) the victim is or has been a local, state, or federal public official, or a candidate for
168 public office, and the homicide is based on, is caused by, or is related to that official position,
169 act, capacity, or candidacy;
170 (m) the victim is or has been a peace officer, law enforcement officer, executive
171 officer, prosecuting officer, jailer, prison official, firefighter, judge or other court official, juror,
172 probation officer, or parole officer, and the victim is either on duty or the homicide is based on,
173 is caused by, or is related to that official position, and the actor knew, or reasonably should
174 have known, that the victim holds or has held that official position;
175 (n) the homicide was committed:
176 (i) by means of a destructive device, bomb, explosive, incendiary device, or similar
177 device which was planted, hidden, or concealed in any place, area, dwelling, building, or
178 structure, or was mailed or delivered; or
179 (ii) by means of any weapon of mass destruction as defined in Section 76-10-401 ;
180 (o) the homicide was committed during the act of unlawfully assuming control of any
181 aircraft, train, or other public conveyance by use of threats or force with intent to obtain any
182 valuable consideration for the release of the public conveyance or any passenger, crew

183 member, or any other person aboard, or to direct the route or movement of the public
184 conveyance or otherwise exert control over the public conveyance;
185 (p) the homicide was committed by means of the administration of a poison or of any
186 lethal substance or of any substance administered in a lethal amount, dosage, or quantity;
187 (q) the victim was a person held or otherwise detained as a shield, hostage, or for
188 ransom;
189 (r) the homicide was committed in an especially heinous, atrocious, cruel, or
190 exceptionally depraved manner, any of which must be demonstrated by physical torture, serious
191 physical abuse, or serious bodily injury of the victim before death;
192 (s) the actor dismembers, mutilates, or disfigures the victim's body, whether before or
193 after death, in a manner demonstrating the actor's depravity of mind; or
194 (t) the victim was younger than 14 years of age.
195 (2) Criminal homicide constitutes aggravated murder if the actor, with reckless
196 indifference to human life, causes the death of another incident to an act, scheme, course of
197 conduct, or criminal episode during which the actor is a major participant in the commission or
198 attempted commission of:
199 (a) child abuse, Subsection 76-5-109 (2)(a);
200 (b) child kidnapping, Section 76-5-301.1 ;
201 (c) rape of a child, Section 76-5-402.1 ;
202 (d) object rape of a child, Section 76-5-402.3 ;
203 (e) sodomy on a child, Section 76-5-403.1 ; or
204 (f) sexual abuse or aggravated sexual abuse of a child, Section 76-5-404.1 .
205 (3) (a) If a notice of intent to seek the death penalty has been filed, aggravated murder
206 is a capital felony.
207 (b) If a notice of intent to seek the death penalty has not been filed, aggravated murder
208 is a noncapital first degree felony punishable by imprisonment for life without parole or by an
209 indeterminate term of not less than 20 years and which may be for life.
210 (c) (i) Within 60 days after arraignment of the defendant, the prosecutor may file notice
211 of intent to seek the death penalty. The notice shall be served on the defendant or defense
212 counsel and filed with the court.
213 (ii) Notice of intent to seek the death penalty may be served and filed more than 60

214 days after the arraignment upon written stipulation of the parties or upon a finding by the court
215 of good cause.
216 (d) Without the consent of the prosecutor, the court may not accept a plea of guilty to
217 noncapital first degree felony aggravated murder during the period in which the prosecutor may
218 file a notice of intent to seek the death penalty under Subsection (3)(c)(i).
219 (4) (a) It is an affirmative defense to a charge of aggravated murder or attempted
220 aggravated murder that the defendant caused the death of another or attempted to cause the
221 death of another:
222 (i) under the influence of extreme emotional distress for which there is a reasonable
223 explanation or excuse; or
224 (ii) under a reasonable belief that the circumstances provided a legal justification or
225 excuse for the defendant's conduct although the conduct was not legally justifiable or excusable
226 under the existing circumstances.
227 (b) Under Subsection (4)(a)(i), emotional distress does not include:
228 (i) a condition resulting from mental illness as defined in Section 76-2-305 ; or
229 (ii) distress that is substantially caused by the defendant's own conduct.
230 (c) The reasonableness of an explanation or excuse under Subsection (4)(a)(i) or the
231 reasonable belief of the actor under Subsection (4)(a)(ii) shall be determined from the
232 viewpoint of a reasonable person under the then existing circumstances.
233 (d) This affirmative defense reduces charges only as follows:
234 (i) aggravated murder to murder; and
235 (ii) attempted aggravated murder to attempted murder.
236 (5) (a) Any aggravating circumstance described in Subsection (1) or (2) that constitutes
237 a separate offense does not merge with the crime of aggravated murder.
238 (b) A person who is convicted of aggravated murder, based on an aggravating
239 circumstance described in Subsection (1) or (2) that constitutes a separate offense, may also be
240 convicted of, and punished for, the separate offense.
241 Section 3. Section 76-9-802 is amended to read:
242 76-9-802. Definitions.
243 As used in this part:
244 (1) "Criminal street gang" means an organization, association in fact, or group of three

245 or more persons, whether operated formally or informally:
246 (a) that is currently in operation;
247 (b) that has as one of its primary activities the commission of one or more predicate
248 gang crimes;
249 (c) that has, as a group, an identifying name or identifying sign or symbol, or both; and
250 (d) whose members, acting individually or in concert with other members, engage in or
251 have engaged in a pattern of criminal gang activity.
252 (2) "Intimidate" means the use of force, duress, violence, coercion, menace, or threat of
253 harm for the purpose of causing an individual to act or refrain from acting.
254 (3) "Minor" means a person younger than 18 years of age.
255 (4) "Pattern of criminal gang activity" means:
256 (a) committing, attempting to commit, conspiring to commit, or soliciting the
257 commission of two or more predicate gang crimes within five years;
258 (b) the predicate gang crimes are:
259 (i) committed by two or more persons; or
260 (ii) committed by an individual at the direction of, or in association with a criminal
261 street gang; and
262 (c) the criminal activity was committed with the specific intent to promote, further, or
263 assist in any criminal conduct by members of the criminal street gang.
264 (5) (a) "Predicate gang crime" means any of the following offenses:
265 (i) any criminal violation of the following provisions:
266 (A) Title 58, Chapter 37, Utah Controlled Substances Act;
267 (B) Title 58, Chapter 37a, Utah Drug Paraphernalia Act;
268 (C) Title 58, Chapter 37b, Imitation Controlled Substances Act; or
269 (D) Title 58, Chapter 37c, Utah Controlled Substance Precursor Act;
270 (ii) Sections 76-5-102 through 76-5-103.5 , which address assault offenses;
271 (iii) Title 76, Chapter 5, Part 2, Criminal Homicide;
272 (iv) Sections 76-5-301 through 76-5-304 , which address kidnapping and related
273 offenses;
274 (v) any felony offense under Title 76, Chapter 5, Part 4, Sexual Offenses;
275 (vi) Title 76, Chapter 6, Part 1, Property Destruction;

276 (vii) Title 76, Chapter 6, Part 2, Burglary and Criminal Trespass;
277 (viii) Title 76, Chapter 6, Part 3, Robbery;
278 (ix) any felony offense under Title 76, Chapter 6, Part 4, Theft, or under Title 76,
279 Chapter 6, Part 6, Retail Theft, except Sections 76-6-404.5 , 76-6-405 , 76-6-407 , 76-6-408 ,
280 76-6-409 , 76-6-409.1 , 76-6-409.3 , 76-6-409.6 , 76-6-409.7 , 76-6-409.8 , 76-6-409.9 , 76-6-410 ,
281 and 76-6-410.5 ;
282 (x) Title 76, Chapter 6, Part 5, Fraud, except Sections 76-6-504 , 76-6-505 , 76-6-507 ,
283 76-6-508 , 76-6-509 , 76-6-510 , 76-6-511 , 76-6-512 , 76-6-513 , 76-6-514 , 76-6-516 , 76-6-517 ,
284 76-6-518 , and 76-6-520 ;
285 (xi) Title 76, Chapter 6, Part 11, Identity Fraud Act;
286 (xii) Title 76, Chapter 8, Part 3, Obstructing Governmental Operations, except Sections
287 76-8-302 , 76-8-303 , 76-8-304 , 76-8-307 , 76-8-308 , and 76-8-312 ;
288 (xiii) Section 76-8-508 , which includes tampering with a witness;
289 (xiv) Section 76-8-508.3 , which includes retaliation against a witness or victim;
290 (xv) Section 76-8-509 , which includes extortion or bribery to dismiss a criminal
291 proceeding;
292 (xvi) Title 76, Chapter 10, Part 3, [which addresses explosives] Explosives;
293 (xvii) Title 76, Chapter 10, Part 5, Weapons;
294 (xviii) Title 76, Chapter 10, Part 15, Bus Passenger Safety Act;
295 (xix) Title 76, Chapter 10, Part 16, Pattern of Unlawful Activity Act;
296 (xx) Section 76-10-1801 , which addresses communications fraud;
297 (xxi) Title 76, Chapter 10, Part 19, Money Laundering and Currency Transaction
298 Reporting Act;
299 (xxii) Section 76-10-2002 , which addresses burglary of a research facility;
300 (xxiii) Title 41, Chapter 1a, Motor Vehicle Act:
301 (A) Section 41-1a-1313 , regarding possession of a motor vehicle without an
302 identification number;
303 (B) Section 41-1a-1315 , regarding false evidence of title and registration;
304 (C) Section 41-1a-1316 , regarding receiving or transferring stolen vehicles;
305 (D) Section 41-1a-1317 , regarding selling or buying a motor vehicle without an
306 identification number; and

307 (E) Section 41-1a-1318 , regarding the fraudulent alteration of an identification number.
308 (b) "Predicate gang crime" also includes:
309 (i) any state or federal criminal offense that by its nature involves a substantial risk that
310 physical force may be used against another in the course of committing the offense; and
311 (ii) any felony violation of a criminal statute of any other state, the United States, or
312 any district, possession, or territory of the United States which would constitute a violation of
313 any offense in Subsection (4)(a) if committed in this state.
314 Section 4. Section 76-10-508.1 is amended to read:
315 76-10-508.1. Felony discharge of a firearm -- Penalties.
316 (1) Except as provided under Subsection (2) or (3), a person who discharges a firearm
317 [under any of the circumstances not amounting to criminal homicide or attempted criminal
318 homicide] is guilty of a third degree felony punishable by imprisonment for a term of not less
319 than three years nor more than five years if:
320 (a) the actor discharges a firearm in the direction of any person or persons, knowing or
321 having reason to believe that any person may be endangered by the discharge of the firearm;
322 (b) the actor, with intent to intimidate or harass another or with intent to damage a
323 habitable structure as defined in Section 76-6-101 , discharges a firearm in the direction of any
324 person or habitable structure; or
325 (c) the actor, with intent to intimidate or harass another, discharges a firearm in the
326 direction of any vehicle.
327 (2) A violation of Subsection (1) which causes bodily injury to any person is a second
328 degree felony punishable by imprisonment for a term of not less than three years nor more than
329 [fifteen] 15 years.
330 (3) A violation of Subsection (1) which causes serious bodily injury to any person is a
331 first degree felony.
332 (4) In addition to any other penalties for a violation of this section, the court shall:
333 (a) notify the Driver License Division of the conviction for purposes of any revocation,
334 denial, suspension, or disqualification of a driver license under Subsection 53-3-220 (1)(a)(xi);
335 and
336 (b) specify in court at the time of sentencing the length of the revocation under
337 Subsection 53-3-225 (1)(c).

338 (5) This section does not apply to a person:
339 (a) who discharges any kind of firearm when that person is in lawful defense of self or
340 others;
341 (b) who is performing official duties as provided in Section 23-20-1.5 or 76-10-523 or
342 as otherwise authorized by law; or
343 (c) who discharges a dangerous weapon or firearm from an automobile or other
344 vehicle, if:
345 (i) the discharge occurs at a firing range or training ground;
346 (ii) at no time after the discharge does the projectile that is discharged cross over or
347 stop at a location other than within the boundaries of the firing range or training ground
348 described in Subsection (5)(c)(i);
349 (iii) the discharge is made as practice or training for a lawful purpose;
350 (iv) the discharge and the location, time, and manner of the discharge are approved by
351 the owner or operator of the firing range or training ground prior to the discharge; and
352 (v) the discharge is not made in violation of Subsection (1).




Legislative Review Note
as of 10-15-08 2:07 PM

Office of Legislative Research and General Counsel