7 LONG TITLE
8 General Description:
9 This bill creates an exemption in the criminal stalking statute for a law enforcement
10 officer, governmental investigator, or licensed private investigator.
11 Highlighted Provisions:
12 This bill:
13 ▸ creates an exemption in the criminal stalking statute for a law enforcement officer,
14 governmental investigator, or licensed private investigator acting in an official
15 capacity; and
16 ▸ makes technical and conforming changes.
17 Money Appropriated in this Bill:
19 Other Special Clauses:
21 Utah Code Sections Affected:
23 76-3-203.5, as last amended by Laws of Utah 2013, Chapter 278
24 76-5-106.5, as last amended by Laws of Utah 2020, Chapter 142
25 78B-7-903, as enacted by Laws of Utah 2020, Chapter 142
27 Be it enacted by the Legislature of the state of Utah:
28 Section 1. Section 76-3-203.5 is amended to read:
29 76-3-203.5. Habitual violent offender -- Definition -- Procedure -- Penalty.
30 (1) As used in this section:
31 (a) "Felony" means any violation of a criminal statute of the state, any other state, the
32 United States, or any district, possession, or territory of the United States for which the
33 maximum punishment the offender may be subjected to exceeds one year in prison.
34 (b) "Habitual violent offender" means a person convicted within the state of any violent
35 felony and who on at least two previous occasions has been convicted of a violent felony and
36 committed to either prison in Utah or an equivalent correctional institution of another state or
37 of the United States either at initial sentencing or after revocation of probation.
38 (c) "Violent felony" means:
39 (i) any of the following offenses, or any attempt, solicitation, or conspiracy to commit
40 any of the following offenses punishable as a felony:
41 (A) aggravated arson, arson, knowingly causing a catastrophe, and criminal mischief,
42 Title 76, Chapter 6, Part 1, Property Destruction;
43 (B) assault by prisoner, Section 76-5-102.5;
44 (C) disarming a police officer, Section 76-5-102.8;
45 (D) aggravated assault, Section 76-5-103;
46 (E) aggravated assault by prisoner, Section 76-5-103.5;
47 (F) mayhem, Section 76-5-105;
48 (G) stalking, Subsection 76-5-106.5(2) [
49 (H) threat of terrorism, Section 76-5-107.3;
50 (I) child abuse, Subsection 76-5-109(2)(a) or (b);
51 (J) commission of domestic violence in the presence of a child, Section 76-5-109.1;
52 (K) abuse or neglect of a child with a disability, Section 76-5-110;
53 (L) abuse, neglect, or exploitation of a vulnerable adult, Section 76-5-111;
54 (M) endangerment of a child or vulnerable adult, Section 76-5-112.5;
55 (N) criminal homicide offenses under Title 76, Chapter 5, Part 2, Criminal Homicide;
56 (O) kidnapping, child kidnapping, and aggravated kidnapping under Title 76, Chapter
57 5, Part 3, Kidnapping, Trafficking, and Smuggling;
58 (P) rape, Section 76-5-402;
59 (Q) rape of a child, Section 76-5-402.1;
60 (R) object rape, Section 76-5-402.2;
61 (S) object rape of a child, Section 76-5-402.3;
62 (T) forcible sodomy, Section 76-5-403;
63 (U) sodomy on a child, Section 76-5-403.1;
64 (V) forcible sexual abuse, Section 76-5-404;
65 (W) aggravated sexual abuse of a child or sexual abuse of a child, Section 76-5-404.1;
66 (X) aggravated sexual assault, Section 76-5-405;
67 (Y) sexual exploitation of a minor, Section 76-5b-201;
68 (Z) sexual exploitation of a vulnerable adult, Section 76-5b-202;
69 (AA) aggravated burglary and burglary of a dwelling under Title 76, Chapter 6, Part 2,
70 Burglary and Criminal Trespass;
71 (BB) aggravated robbery and robbery under Title 76, Chapter 6, Part 3, Robbery;
72 (CC) theft by extortion under Subsection 76-6-406(2)(a) or (b);
73 (DD) tampering with a witness under Subsection 76-8-508(1);
74 (EE) retaliation against a witness, victim, or informant under Section 76-8-508.3;
75 (FF) tampering with a juror under Subsection 76-8-508.5(2)(c);
76 (GG) extortion to dismiss a criminal proceeding under Section 76-8-509 if by any
77 threat or by use of force theft by extortion has been committed pursuant to Subsections
78 76-6-406(2)(a), (b), and (i);
79 (HH) possession, use, or removal of explosive, chemical, or incendiary devices under
80 Subsections 76-10-306(3) through (6);
81 (II) unlawful delivery of explosive, chemical, or incendiary devices under Section
83 (JJ) purchase or possession of a dangerous weapon or handgun by a restricted person
84 under Section 76-10-503;
85 (KK) unlawful discharge of a firearm under Section 76-10-508;
86 (LL) aggravated exploitation of prostitution under Subsection 76-10-1306(1)(a);
87 (MM) bus hijacking under Section 76-10-1504; and
88 (NN) discharging firearms and hurling missiles under Section 76-10-1505; or
89 (ii) any felony violation of a criminal statute of any other state, the United States, or
90 any district, possession, or territory of the United States which would constitute a violent
91 felony as defined in this Subsection (1) if committed in this state.
92 (2) If a person is convicted in this state of a violent felony by plea or by verdict and the
93 trier of fact determines beyond a reasonable doubt that the person is a habitual violent offender
94 under this section, the penalty for a:
95 (a) third degree felony is as if the conviction were for a first degree felony;
96 (b) second degree felony is as if the conviction were for a first degree felony; or
97 (c) first degree felony remains the penalty for a first degree penalty except:
98 (i) the convicted person is not eligible for probation; and
99 (ii) the Board of Pardons and Parole shall consider that the convicted person is a
100 habitual violent offender as an aggravating factor in determining the length of incarceration.
101 (3) (a) The prosecuting attorney, or grand jury if an indictment is returned, shall
102 provide notice in the information or indictment that the defendant is subject to punishment as a
103 habitual violent offender under this section. Notice shall include the case number, court, and
104 date of conviction or commitment of any case relied upon by the prosecution.
105 (b) (i) The defendant shall serve notice in writing upon the prosecutor if the defendant
106 intends to deny that:
107 (A) the defendant is the person who was convicted or committed;
108 (B) the defendant was represented by counsel or had waived counsel; or
109 (C) the defendant's plea was understandingly or voluntarily entered.
110 (ii) The notice of denial shall be served not later than five days prior to trial and shall
111 state in detail the defendant's contention regarding the previous conviction and commitment.
112 (4) (a) If the defendant enters a denial under Subsection (3)(b) and if the case is tried to
113 a jury, the jury may not be told, until after it returns its verdict on the underlying felony charge,
114 of the:
115 (i) defendant's previous convictions for violent felonies, except as otherwise provided
116 in the Utah Rules of Evidence; or
117 (ii) allegation against the defendant of being a habitual violent offender.
118 (b) If the jury's verdict is guilty, the defendant shall be tried regarding the allegation of
119 being an habitual violent offender by the same jury, if practicable, unless the defendant waives
120 the jury, in which case the allegation shall be tried immediately to the court.
121 (c) (i) Before or at the time of sentencing the trier of fact shall determine if this section
123 (ii) The trier of fact shall consider any evidence presented at trial and the prosecution
124 and the defendant shall be afforded an opportunity to present any necessary additional
126 (iii) Before sentencing under this section, the trier of fact shall determine whether this
127 section is applicable beyond a reasonable doubt.
128 (d) If any previous conviction and commitment is based upon a plea of guilty or no
129 contest, there is a rebuttable presumption that the conviction and commitment were regular and
130 lawful in all respects if the conviction and commitment occurred after January 1, 1970. If the
131 conviction and commitment occurred prior to January 1, 1970, the burden is on the prosecution
132 to establish by a preponderance of the evidence that the defendant was then represented by
133 counsel or had lawfully waived the right to have counsel present, and that the defendant's plea
134 was understandingly and voluntarily entered.
135 (e) If the trier of fact finds this section applicable, the court shall enter that specific
136 finding on the record and shall indicate in the order of judgment and commitment that the
137 defendant has been found by the trier of fact to be a habitual violent offender and is sentenced
138 under this section.
139 (5) (a) The sentencing enhancement provisions of Section 76-3-407 supersede the
140 provisions of this section.
141 (b) Notwithstanding Subsection (5)(a), the "violent felony" offense defined in
142 Subsection (1)(c) shall include any felony sexual offense violation of Title 76, Chapter 5, Part
143 4, Sexual Offenses, to determine if the convicted person is a habitual violent offender.
144 (6) The sentencing enhancement described in this section does not apply if:
145 (a) the offense for which the person is being sentenced is:
146 (i) a grievous sexual offense;
147 (ii) child kidnapping, Section 76-5-301.1;
148 (iii) aggravated kidnapping, Section 76-5-302; or
149 (iv) forcible sexual abuse, Section 76-5-404; and
150 (b) applying the sentencing enhancement provided for in this section would result in a
151 lower maximum penalty than the penalty provided for under the section that describes the
152 offense for which the person is being sentenced.
153 Section 2. Section 76-5-106.5 is amended to read:
154 76-5-106.5. Stalking -- Definitions -- Injunction -- Penalties -- Exemption -- Duties
155 of law enforcement officer.
156 (1) As used in this section:
157 (a) "Course of conduct" means two or more acts directed at or toward a specific
159 (i) acts in which the actor follows, monitors, observes, photographs, surveils, threatens,
160 or communicates to or about [
161 individual's property:
162 (A) directly, indirectly, or through any third party; and
163 (B) by any action, method, device, or means; or
164 (ii) when the actor engages in any of the following acts or causes someone else to
165 engage in any of these acts:
166 (A) approaches or confronts [
167 (B) appears at the [
168 individual's employer or [
169 (C) appears at [
170 an individual's neighbor, or enters property owned, leased, or occupied by [
172 (D) sends material by any means to the [
173 obtaining or disseminating information about or communicating with the [
174 a member of the [
175 associate of the [
176 (E) places an object on or delivers an object to property owned, leased, or occupied by
178 that the object be delivered to the [
179 (F) uses a computer, the Internet, text messaging, or any other electronic means to
180 commit an act that is a part of the course of conduct.
181 (b) "Emotional distress" means significant mental or psychological suffering, whether
182 or not medical or other professional treatment or counseling is required.
183 (c) "Immediate family" means a spouse, parent, child, sibling, or any other [
184 individual who regularly resides in the household or who regularly resided in the household
185 within the prior six months.
186 (d) "Private investigator" means the same as that term is defined in Section 76-9-408.
190 or more electronic images sent by the actor from a telephone or computer to another [
191 individual's telephone or computer by addressing the communication to the recipient's
192 telephone number.
193 (2) [
194 intentionally or knowingly:
195 (a) engages in a course of conduct directed at a specific [
196 or should know that the course of conduct would cause a reasonable person:
198 individual; or
201 (b) violates:
203 Injunctions; or
205 Part 9, Criminal Stalking Injunctions.
207 (a) was not given actual notice that the course of conduct was unwanted; or
208 (b) did not intend to cause the victim fear or other emotional distress.
210 where one or more of the acts that is part of the course of conduct was initiated or caused an
211 effect on the victim.
215 Chapter 7, Part 7, Civil Stalking Injunctions.
217 a third degree felony if the [
220 substantially similar to the offense of stalking;
222 in another jurisdiction which if committed in Utah would be a felony, in which the victim of
223 the stalking offense or a member of the victim's immediate family was also a victim of the
224 previous felony offense;
226 Chapter 7, Part 9, Criminal Stalking Injunctions; or
228 78B-7-102, of the victim.
230 Subsection (2) is a second degree felony if the [
232 or force likely to produce death or serious bodily injury, in the commission of the crime of
236 of offenses that are substantially similar to the offense of stalking;
238 Subsection [
240 of crimes in another jurisdiction or jurisdictions which, if committed in Utah, would be
241 felonies, in which the victim of the stalking was also a victim of the previous felony offenses;
244 (5)(b)(iv) or (v).
245 (6) (a) Except as provided in Subsection (6)(b), an actor does not violate this section if
246 the actor is acting:
247 (i) in the actor's official capacity as a law enforcement officer, governmental
248 investigator, or private investigator; and
249 (ii) for a legitimate official or business purpose.
250 (b) A private investigator is not exempt from this section if the private investigator
251 engages in conduct that would constitute a ground for disciplinary action under Section
255 (b) This section does not preclude the filing of criminal information for stalking based
256 on the same act which is the basis for the violation of the stalking injunction issued under Title
257 78B, Chapter 7, Part 7, Civil Stalking Injunctions, or a permanent criminal stalking injunction
258 issued under Title 78B, Chapter 7, Part 9, Criminal Stalking Injunctions.
260 use all reasonable means to protect the victim and prevent further violence, including:
261 (i) taking action that, in the officer's discretion, is reasonably necessary to provide for
262 the safety of the victim and any family or household member;
263 (ii) confiscating the weapon or weapons involved in the alleged stalking;
264 (iii) making arrangements for the victim and any child to obtain emergency housing or
266 (iv) providing protection while the victim removes essential personal effects;
267 (v) arranging, facilitating, or providing for the victim and any child to obtain medical
268 treatment; and
269 (vi) arranging, facilitating, or providing the victim with immediate and adequate notice
270 of the rights of victims and of the remedies and services available to victims of stalking, in
271 accordance with Subsection [
272 (b) (i) A law enforcement officer shall give written notice to the victim in simple
273 language, describing the rights and remedies available under this section and Title 78B,
274 Chapter 7, Part 7, Civil Stalking Injunctions.
275 (ii) The written notice shall also include:
276 (A) a statement that the forms needed in order to obtain a stalking injunction are
277 available from the court clerk's office in the judicial district where the victim resides or is
278 temporarily domiciled; and
279 (B) a list of shelters, services, and resources available in the appropriate community,
280 together with telephone numbers, to assist the victim in accessing any needed assistance.
281 (c) If a weapon is confiscated under this Subsection [
282 agency shall return the weapon to the individual from whom the weapon is confiscated if a
283 stalking injunction is not issued or once the stalking injunction is terminated.
284 Section 3. Section 78B-7-903 is amended to read:
285 78B-7-903. Penalties.
286 (1) A violation of a permanent criminal stalking injunction issued under this part is a
287 third degree felony in accordance with Subsection 76-5-106.5[
288 (2) A violation of a permanent criminal stalking injunction issued under this part may
289 be enforced in a civil action initiated by the stalking victim, a criminal action initiated by a
290 prosecuting attorney, or both.