73rd OREGON LEGISLATIVE ASSEMBLY--2005 Regular Session

SENATE AMENDMENTS TO SENATE BILL 528 By COMMITTEE ON JUDICIARY June 3

1 In line 2 of the printed bill, delete “amending ORS 167.167.” and insert “creating new provisions; 2 amending ORS 40.015, 136.280, 137.765, 137.767, 161.725 and 161.735; and declaring an emergency.”. 3 Delete lines 4 through 18 and insert: 4 “SECTION 1. As used in sections 2 to 7 of this 2005 Act: 5 “(1) ‘Accusatory instrument’ has the meaning given that term in ORS 131.005. 6 “(2) ‘Enhancement fact’ means a fact that is constitutionally required to be found by a 7 jury in order to increase the that may be imposed upon of a crime. 8 “SECTION 2. In order to rely on an enhancement fact to increase the sentence that may 9 be imposed in a criminal proceeding, the state shall notify the defendant of its intention to 10 rely on the enhancement fact by: 11 “(1) Pleading the enhancement fact in the accusatory instrument; or 12 “(2) Within a reasonable time after filing the accusatory instrument, providing written 13 notice to the defendant of the enhancement fact and the state′s intention to rely on it. 14 “SECTION 3. (1) When an enhancement fact relates to an offense charged in the 15 accusatory instrument, the court shall submit the enhancement fact to the jury during the 16 phase of the criminal proceeding unless the defendant: 17 “(a) Defers trial of the enhancement fact under subsection (4) of this section; or 18 “(b) Makes a written waiver of the right to a on the enhancement fact and: 19 “(A) Admits to the enhancement fact; or 20 “(B) Elects to have the enhancement fact tried to the court. 21 “(2) If the defendant makes the election under subsection (1)(b)(B) of this section and is 22 found guilty during the trial phase of the criminal proceeding, the enhancement fact shall 23 be tried during the sentencing phase of the proceeding. 24 “(3) If there is more than one enhancement fact relating to the offense and the defendant 25 does not admit to all of them, the defendant shall elect to try to the jury or to the court all 26 enhancement facts relating to the offense to which the defendant does not admit. 27 “(4) If the court finds that trying an enhancement fact relating to the offense during the 28 trial phase of the criminal proceeding would unfairly prejudice the jury′s on an 29 underlying offense, the court shall allow the defendant to defer trial of the enhancement fact 30 to the sentencing phase of the proceeding without waiving the right to a jury trial on the 31 enhancement fact. 32 “(5) If two or more defendants are being tried in the same criminal proceeding, each de- 33 fendant shall make the elections required by this section. 34 “SECTION 4. (1) When an enhancement fact relates to the defendant, the court shall 35 submit the enhancement fact to the jury during the sentencing phase of the criminal pro-

LC 2157/SB 528-10 1 ceeding if the defendant is found guilty of an offense to which the enhancement fact applies 2 unless the defendant makes a written waiver of the right to a jury trial on the enhancement 3 fact and: 4 “(a) Admits to the enhancement fact; or 5 “(b) Elects to have the enhancement fact tried to the court. 6 “(2) If the defendant makes the election under subsection (1)(b) of this section and is 7 found guilty during the trial phase of the criminal proceeding, the enhancement fact shall 8 be tried during the sentencing phase of the proceeding. 9 “(3) If there is more than one enhancement fact relating to the defendant and the de- 10 fendant does not admit to all of them, the defendant shall elect to try to the jury or to the 11 court all enhancement facts relating to the defendant to which the defendant does not admit. 12 “(4) If two or more defendants are being tried in the same criminal proceeding, each de- 13 fendant shall make the elections required by this section. 14 “(5) Unless the defendant waives the right to a jury trial on enhancement facts related 15 to the defendant, the sentencing phase shall be conducted in the trial court before the jury 16 following a finding of by the jury. If for any reason a juror is unable to perform the 17 function of a juror, the court shall dismiss the juror from the sentencing phase and draw the 18 name of one of the alternate jurors. The alternate juror then becomes a member of the jury 19 for the sentencing phase notwithstanding the fact that the alternate juror did not deliberate 20 on the issue of guilt. The court may allow the substitution of an alternate juror only if the 21 jury has not begun to deliberate on the issue of an enhancement fact. 22 “SECTION 5. When a defendant waives the right to a jury trial on the issue of guilt or 23 innocence, the waiver constitutes a written waiver of the right to a jury trial on all en- 24 hancement facts whether related to the offense or the defendant. 25 “SECTION 6. All received during the trial phase of a criminal proceeding may 26 be considered by the jury or, if the defendant waives the right to a jury trial, by the court 27 during the sentencing phase of the proceeding. 28 “SECTION 7. (1) When an enhancement fact is tried to a jury, any question relating to 29 the enhancement fact shall be submitted to the jury. 30 “(2) The state has the burden of proving an enhancement fact beyond a reasonable doubt. 31 “(3) An enhancement fact that is tried to a jury is unless: 32 “(a) The number of jurors who find that the state has met its burden of proof with regard 33 to the enhancement fact is equal to or greater than the number of jurors that was required 34 to find the defendant guilty of the crime; and 35 “(b) Of the jurors who find that the state has met its burden of proof, at least the min- 36 imum number of jurors required by this subsection to prove an enhancement fact are also 37 jurors who found the defendant guilty of the crime. 38 “(4) An enhancement fact that is tried to the court is not proven unless the court finds 39 that the state has met its burden of proof with regard to the enhancement fact. 40 “(5) A finding relating to an enhancement fact made by a jury during the trial or sen- 41 tencing phase of a criminal proceeding may not be reexamined by the court. Notwithstanding 42 the findings made by a jury relating to an enhancement fact, the court is not required to 43 impose an enhanced sentence. 44 “SECTION 8. ORS 40.015 is amended to read: 45 “40.015. (1) The Oregon Evidence Code applies to all courts in this state except for:

SA to SB 528 Page 2 1 “(a) A tax court small claims procedure or a hearing or mediation before a magistrate of the 2 Oregon Tax Court as provided by ORS 305.501; 3 “(b) The small claims department of a circuit court as provided by ORS 46.415; and 4 “(c) The small claims department of a justice court as provided by ORS 55.080. 5 “(2) The Oregon Evidence Code applies generally to civil actions, suits and proceedings, criminal 6 actions and proceedings and to contempt proceedings except those in which the court may act 7 summarily. 8 “(3) ORS 40.225 to 40.295 relating to privileges apply at all stages of all actions, suits and pro- 9 ceedings. 10 “(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the following situations: 11 “(a) The determination of questions of fact preliminary to admissibility of evidence when the 12 issue is to be determined by the court under ORS 40.030. 13 “(b) Proceedings before grand juries, except as required by ORS 132.320. 14 “(c) Proceedings for extradition, except as required by ORS 133.743 to 133.857. 15 “(d) Sentencing proceedings, except proceedings under ORS 138.012 and 163.150, [or] as required 16 by ORS 137.090 or proceedings under sections 2 to 7 of this 2005 Act. 17 “(e) Proceedings to revoke , except as required by ORS 137.090. 18 “(f) Issuance of warrants of arrest, bench warrants or search warrants. 19 “(g) Proceedings under ORS chapter 135 relating to conditional release, security release, release 20 on personal recognizance, or preliminary hearings, subject to ORS 135.173. 21 “(h) Proceedings to determine proper disposition of a child in accordance with ORS 419B.325 (2) 22 and 419C.400 (3). 23 “(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230, 813.250 and 813.255 to determine 24 whether a driving while under the influence of intoxicants diversion agreement should be allowed 25 or terminated. 26 “SECTION 9. ORS 161.725 is amended to read: 27 “161.725. (1) Subject to the provisions of ORS 161.737, the maximum term of an indeterminate 28 sentence of for a dangerous offender is 30 years, if [the court finds that] because of the 29 dangerousness of the defendant an extended period of confined correctional treatment or custody is 30 required for the protection of the public and [if it further finds, as provided in ORS 161.735, that] 31 one or more of the following grounds exist: 32 “(a) The defendant is being sentenced for a Class A felony[, and the court finds that] and the 33 defendant is suffering from a severe personality disorder indicating a propensity toward crimes that 34 seriously endanger the life or safety of another. 35 “(b) The defendant is being sentenced for a felony that seriously endangered the life or safety 36 of another, the defendant has been previously convicted of a felony not related to the instant crime 37 as a single criminal episode and [the court finds that] the defendant is suffering from a severe per- 38 sonality disorder indicating a propensity toward crimes that seriously endanger the life or safety 39 of another. 40 “(c) The defendant is being sentenced for a felony that seriously endangered the life or safety 41 of another, the defendant has previously engaged in unlawful conduct not related to the instant 42 crime as a single criminal episode that seriously endangered the life or safety of another and [the 43 court finds that] the defendant is suffering from a severe personality disorder indicating a propensity 44 toward crimes that seriously endanger the life or safety of another. 45 “[(2) Unless the parties stipulate otherwise, the state has the burden of proving beyond a reasonable

SA to SB 528 Page 3 1 doubt that the felonies or unlawful conduct referred to in subsection (1)(b) and (c) of this section seri- 2 ously endangered the life and safety of another.] 3 “[(3)] (2) As used in this section, ‘previously convicted of a felony’ means: 4 “(a) Previous conviction of a felony in a court of this state; 5 “(b) Previous conviction in a court of the United States, other than a court-martial, of an offense 6 which at the time of conviction of the offense was and at the time of conviction of the instant crime 7 is punishable under the laws of the United States by death or by imprisonment in a penitentiary, 8 prison or similar institution for a term of one year or more; or 9 “(c) Previous conviction by a general court-martial of the United States or in a court of any 10 other state or territory of the United States, or of the Commonwealth of Puerto Rico, of an offense 11 which at the time of conviction of the offense was punishable by death or by imprisonment in a 12 penitentiary, prison or similar institution for a term of one year or more and which offense also at 13 the time of conviction of the instant crime would have been a felony if committed in this state. 14 “[(4)] (3) As used in this section, ‘previous conviction of a felony’ does not include: 15 “(a) An offense committed when the defendant was less than 16 years of age; 16 “(b) A conviction rendered after the commission of the instant crime; 17 “(c) A conviction that is the defendant′s most recent conviction described in subsection [(3)] (2) 18 of this section, and the defendant was finally and unconditionally discharged from all resulting 19 imprisonment, probation or more than seven years before the commission of the instant crime; 20 or 21 “(d) A conviction that was by court-martial of an offense denounced only by military law and 22 triable only by court-martial. 23 “[(5)] (4) As used in this section, ‘conviction’ means an adjudication of guilt upon a plea, verdict 24 or finding in a criminal proceeding in a court of competent jurisdiction, but does not include an 25 adjudication which has been expunged by , reversed, set aside or otherwise rendered 26 nugatory. 27 “SECTION 10. ORS 161.735 is amended to read: 28 “161.735. (1) Upon motion of the district attorney, and if, in the opinion of the court, there is 29 reason to believe that the defendant falls within ORS 161.725, the court shall order a presentence 30 investigation and an examination by a psychiatrist or psychologist. The court may appoint one or 31 more qualified psychiatrists or psychologists to examine the defendant in the local correctional fa- 32 cility. 33 “(2) All costs connected with the examination shall be paid by the state. 34 “(3) The examination performed pursuant to this section shall be completed within 30 days, 35 subject to additional extensions not exceeding 30 days on order of the court. Each psychiatrist and 36 psychologist appointed to examine a defendant under this section shall file with the court a written 37 report of findings and conclusions, including an evaluation of whether the defendant is suffering 38 from a severe personality disorder indicating a propensity toward criminal activity. 39 “(4) No statement made by a defendant under this section or ORS 137.124 or 423.090 shall be 40 used against the defendant in any civil proceeding or in any other criminal proceeding. 41 “(5) Upon receipt of the examination and presentence reports the court shall set a time for a 42 presentence hearing, unless the district attorney and the defendant waive the hearing. At the pre- 43 sentence hearing the district attorney and the defendant may question any psychiatrist or psychol- 44 ogist who examined the defendant pursuant to this section. 45 “(6) If, after considering [the presentence report, the examination reports and] the evidence in the

SA to SB 528 Page 4 1 case or [on] in the presentence hearing, the jury or, if the defendant waives the right to a jury 2 trial, the court finds that the defendant comes within ORS 161.725, the court may sentence the de- 3 fendant as a dangerous offender. 4 “(7) In determining whether a defendant has been previously convicted of a felony for purposes 5 of ORS 161.725, the court shall consider as prima facie evidence of the previous conviction: 6 “(a) A copy of the judicial record of the conviction which copy is authenticated under ORS 7 40.510; 8 “(b) A copy of the fingerprints of the subject of that conviction which copy is authenticated 9 under ORS 40.510; and 10 “(c) Testimony that the fingerprints of the subject of that conviction are those of the defendant. 11 “(8) Subsection (7) of this section does not prohibit proof of the previous conviction by any other 12 procedure. 13 “(9) The facts required to be found to sentence a defendant as a dangerous offender under 14 this section are enhancement facts, as defined in section 1 of this 2005 Act, and sections 2 15 to 7 of this 2005 Act apply to making determinations of those facts. 16 “SECTION 11. ORS 137.765 is amended to read: 17 “137.765. (1) As used in this section: 18 “(a) ‘History of sexual ’ means that a person has engaged in unlawful sexual conduct that: 19 “(A) Was not committed as part of the same criminal episode as the crime for which the person 20 is currently being sentenced; and 21 “(B) Seriously endangered the life or safety of another person or involved a victim under 12 22 years of age. 23 “(b) ‘Sexually violent dangerous offender’ means a person who has psychopathic personality 24 features, sexually deviant arousal patterns or interests and a history of sexual assault and [who the 25 court finds] presents a substantial probability of committing a crime listed in subsection (3) of this 26 section. 27 “(2) Notwithstanding ORS 161.605, when a person is convicted of a crime listed in subsection (3) 28 of this section, in addition to any sentence of imprisonment required by law, a court shall impose 29 a period of post-prison supervision that extends for the life of the person if: 30 “(a) The person was 18 years of age or older at the time the person committed the crime; and 31 “(b) The [court finds that the] person is a sexually violent dangerous offender. 32 “(3) The crimes to which subsection (2) of this section applies are: 33 “(a) Rape in the first degree and sodomy in the first degree if the victim was: 34 “(A) Subjected to forcible compulsion by the person; 35 “(B) Under 12 years of age; or 36 “(C) Incapable of consent by reason of mental defect, mental incapacitation or physical 37 helplessness; 38 “(b) Unlawful sexual penetration in the first degree; and 39 “(c) An attempt to commit a crime listed in paragraph (a) or (b) of this subsection. 40 “SECTION 12. ORS 137.767 is amended to read: 41 “137.767. (1)(a) A court shall order a presentence investigation and an examination of the de- 42 fendant by a psychiatrist or psychologist upon motion of the district attorney if: 43 “(A) The defendant is convicted of a crime listed in ORS 137.765 (3); and 44 “(B) In the opinion of the court, there is reason to believe that the defendant is a sexually vio- 45 lent dangerous offender as defined in ORS 137.765.

SA to SB 528 Page 5 1 “(b) The court may appoint one or more qualified psychiatrists or psychologists to examine the 2 defendant in the local correctional facility. 3 “(2) The state shall pay all costs connected with an examination under this section. 4 “(3) The examination performed pursuant to this section must be completed within 30 days if the 5 defendant is in custody or within 60 days if the defendant is not in custody. The court may order 6 extensions not exceeding 30 days. Each psychiatrist or psychologist appointed to examine a defend- 7 ant under this section shall file with the court a written report of findings and conclusions, includ- 8 ing an evaluation of whether the defendant is predisposed to commit a crime listed in ORS 137.765 9 (3) because the defendant has: 10 “(a) Psychopathic personality features; and 11 “(b) Sexually deviant arousal patterns or interests. 12 “(4) No statement made by a defendant under this section may be used against the defendant in 13 any civil proceeding or in any other criminal proceeding. 14 “(5) Upon receipt of the examination and presentence reports the court shall set a time for a 15 sentence hearing. At the sentence hearing the district attorney and the defendant may question any 16 psychiatrist or psychologist who examined the defendant pursuant to this section. 17 “(6) If, after considering [the presentence report, the examination reports and] the evidence in the 18 case or [on] in the sentence hearing, the jury or, if the defendant waives the right to a jury 19 trial, the court finds that the defendant is a sexually violent dangerous offender, the court shall 20 sentence the defendant as provided in ORS 137.765. 21 “[(7) Unless the parties stipulate otherwise, the state has the burden of proving beyond a reasonable 22 doubt that the person is a sexually violent dangerous offender.] 23 “(7) The fact that a person is a sexually violent dangerous offender is an enhancement 24 fact, as defined in section 1 of this 2005 Act, and sections 2 to 7 of this 2005 Act apply to 25 making a determination of the fact. 26 “SECTION 13. ORS 40.015, as amended by section 8 of this 2005 Act, is amended to read: 27 “40.015. (1) The Oregon Evidence Code applies to all courts in this state except for: 28 “(a) A tax court small claims procedure or a hearing or mediation before a magistrate of the 29 Oregon Tax Court as provided by ORS 305.501; 30 “(b) The small claims department of a circuit court as provided by ORS 46.415; and 31 “(c) The small claims department of a justice court as provided by ORS 55.080. 32 “(2) The Oregon Evidence Code applies generally to civil actions, suits and proceedings, criminal 33 actions and proceedings and to contempt proceedings except those in which the court may act 34 summarily. 35 “(3) ORS 40.225 to 40.295 relating to privileges apply at all stages of all actions, suits and pro- 36 ceedings. 37 “(4) ORS 40.010 to 40.210 and 40.310 to 40.585 do not apply in the following situations: 38 “(a) The determination of questions of fact preliminary to admissibility of evidence when the 39 issue is to be determined by the court under ORS 40.030. 40 “(b) Proceedings before grand juries, except as required by ORS 132.320. 41 “(c) Proceedings for extradition, except as required by ORS 133.743 to 133.857. 42 “(d) Sentencing proceedings, except proceedings under ORS 138.012 and 163.150[,] or as required 43 by ORS 137.090 [or proceedings under sections 2 to 7 of this 2005 Act]. 44 “(e) Proceedings to revoke probation, except as required by ORS 137.090. 45 “(f) Issuance of warrants of arrest, bench warrants or search warrants.

SA to SB 528 Page 6 1 “(g) Proceedings under ORS chapter 135 relating to conditional release, security release, release 2 on personal recognizance, or preliminary hearings, subject to ORS 135.173. 3 “(h) Proceedings to determine proper disposition of a child in accordance with ORS 419B.325 (2) 4 and 419C.400 (3). 5 “(i) Proceedings under ORS 813.210, 813.215, 813.220, 813.230, 813.250 and 813.255 to determine 6 whether a driving while under the influence of intoxicants diversion agreement should be allowed 7 or terminated. 8 “SECTION 14. ORS 161.725, as amended by section 9 of this 2005 Act, is amended to read: 9 “161.725. (1) Subject to the provisions of ORS 161.737, the maximum term of an indeterminate 10 sentence of imprisonment for a dangerous offender is 30 years, if the court finds that because of 11 the dangerousness of the defendant an extended period of confined correctional treatment or custody 12 is required for the protection of the public and if it further finds, as provided in ORS 161.735, 13 that one or more of the following grounds exist: 14 “(a) The defendant is being sentenced for a Class A felony, and the court finds that [and] the 15 defendant is suffering from a severe personality disorder indicating a propensity toward crimes that 16 seriously endanger the life or safety of another. 17 “(b) The defendant is being sentenced for a felony that seriously endangered the life or safety 18 of another, the defendant has been previously convicted of a felony not related to the instant crime 19 as a single criminal episode and the court finds that the defendant is suffering from a severe per- 20 sonality disorder indicating a propensity toward crimes that seriously endanger the life or safety 21 of another. 22 “(c) The defendant is being sentenced for a felony that seriously endangered the life or safety 23 of another, the defendant has previously engaged in unlawful conduct not related to the instant 24 crime as a single criminal episode that seriously endangered the life or safety of another and the 25 court finds that the defendant is suffering from a severe personality disorder indicating a propen- 26 sity toward crimes that seriously endanger the life or safety of another. 27 “(2) Unless the parties stipulate otherwise, the state has the burden of proving beyond 28 a reasonable doubt that the felonies or unlawful conduct referred to in subsection (1)(b) and 29 (c) of this section seriously endangered the life and safety of another. 30 “[(2)] (3) As used in this section, ‘previously convicted of a felony’ means: 31 “(a) Previous conviction of a felony in a court of this state; 32 “(b) Previous conviction in a court of the United States, other than a court-martial, of an offense 33 which at the time of conviction of the offense was and at the time of conviction of the instant crime 34 is punishable under the laws of the United States by death or by imprisonment in a penitentiary, 35 prison or similar institution for a term of one year or more; or 36 “(c) Previous conviction by a general court-martial of the United States or in a court of any 37 other state or territory of the United States, or of the Commonwealth of Puerto Rico, of an offense 38 which at the time of conviction of the offense was punishable by death or by imprisonment in a 39 penitentiary, prison or similar institution for a term of one year or more and which offense also at 40 the time of conviction of the instant crime would have been a felony if committed in this state. 41 “[(3)] (4) As used in this section, ‘previous conviction of a felony’ does not include: 42 “(a) An offense committed when the defendant was less than 16 years of age; 43 “(b) A conviction rendered after the commission of the instant crime; 44 “(c) A conviction that is the defendant′s most recent conviction described in subsection [(2)] (3) 45 of this section, and the defendant was finally and unconditionally discharged from all resulting

SA to SB 528 Page 7 1 imprisonment, probation or parole more than seven years before the commission of the instant crime; 2 or 3 “(d) A conviction that was by court-martial of an offense denounced only by military law and 4 triable only by court-martial. 5 “[(4)] (5) As used in this section, ‘conviction’ means an adjudication of guilt upon a plea, verdict 6 or finding in a criminal proceeding in a court of competent jurisdiction, but does not include an 7 adjudication which has been expunged by pardon, reversed, set aside or otherwise rendered 8 nugatory. 9 “SECTION 15. ORS 161.735, as amended by section 10 of this 2005 Act, is amended to read: 10 “161.735. (1) Upon motion of the district attorney, and if, in the opinion of the court, there is 11 reason to believe that the defendant falls within ORS 161.725, the court shall order a presentence 12 investigation and an examination by a psychiatrist or psychologist. The court may appoint one or 13 more qualified psychiatrists or psychologists to examine the defendant in the local correctional fa- 14 cility. 15 “(2) All costs connected with the examination shall be paid by the state. 16 “(3) The examination performed pursuant to this section shall be completed within 30 days, 17 subject to additional extensions not exceeding 30 days on order of the court. Each psychiatrist and 18 psychologist appointed to examine a defendant under this section shall file with the court a written 19 report of findings and conclusions, including an evaluation of whether the defendant is suffering 20 from a severe personality disorder indicating a propensity toward criminal activity. 21 “(4) No statement made by a defendant under this section or ORS 137.124 or 423.090 shall be 22 used against the defendant in any civil proceeding or in any other criminal proceeding. 23 “(5) Upon receipt of the examination and presentence reports the court shall set a time for a 24 presentence hearing, unless the district attorney and the defendant waive the hearing. At the pre- 25 sentence hearing the district attorney and the defendant may question any psychiatrist or psychol- 26 ogist who examined the defendant pursuant to this section. 27 “(6) If, after considering the presentence report, the examination reports and the evidence 28 in the case or in the presentence hearing, [the jury or, if the defendant waives the right to a jury 29 trial,] the court finds that the defendant comes within ORS 161.725, the court may sentence the de- 30 fendant as a dangerous offender. 31 “(7) In determining whether a defendant has been previously convicted of a felony for purposes 32 of ORS 161.725, the court shall consider as prima facie evidence of the previous conviction: 33 “(a) A copy of the judicial record of the conviction which copy is authenticated under ORS 34 40.510; 35 “(b) A copy of the fingerprints of the subject of that conviction which copy is authenticated 36 under ORS 40.510; and 37 “(c) Testimony that the fingerprints of the subject of that conviction are those of the defendant. 38 “(8) Subsection (7) of this section does not prohibit proof of the previous conviction by any other 39 procedure. 40 “[(9) The facts required to be found to sentence a defendant as a dangerous offender under this 41 section are enhancement facts, as defined in section 1 of this 2005 Act, and sections 2 to 7 of this 2005 42 Act apply to making determinations of those facts.] 43 “SECTION 16. ORS 137.765, as amended by section 11 of this 2005 Act, is amended to read: 44 “137.765. (1) As used in this section: 45 “(a) ‘History of sexual assault’ means that a person has engaged in unlawful sexual conduct that:

SA to SB 528 Page 8 1 “(A) Was not committed as part of the same criminal episode as the crime for which the person 2 is currently being sentenced; and 3 “(B) Seriously endangered the life or safety of another person or involved a victim under 12 4 years of age. 5 “(b) ‘Sexually violent dangerous offender’ means a person who has psychopathic personality 6 features, sexually deviant arousal patterns or interests and a history of sexual assault and who the 7 court finds presents a substantial probability of committing a crime listed in subsection (3) of this 8 section. 9 “(2) Notwithstanding ORS 161.605, when a person is convicted of a crime listed in subsection (3) 10 of this section, in addition to any sentence of imprisonment required by law, a court shall impose 11 a period of post-prison supervision that extends for the life of the person if: 12 “(a) The person was 18 years of age or older at the time the person committed the crime; and 13 “(b) The court finds that the person is a sexually violent dangerous offender. 14 “(3) The crimes to which subsection (2) of this section applies are: 15 “(a) Rape in the first degree and sodomy in the first degree if the victim was: 16 “(A) Subjected to forcible compulsion by the person; 17 “(B) Under 12 years of age; or 18 “(C) Incapable of consent by reason of mental defect, mental incapacitation or physical 19 helplessness; 20 “(b) Unlawful sexual penetration in the first degree; and 21 “(c) An attempt to commit a crime listed in paragraph (a) or (b) of this subsection. 22 “SECTION 17. ORS 137.767, as amended by section 12 of this 2005 Act, is amended to read: 23 “137.767. (1)(a) A court shall order a presentence investigation and an examination of the de- 24 fendant by a psychiatrist or psychologist upon motion of the district attorney if: 25 “(A) The defendant is convicted of a crime listed in ORS 137.765 (3); and 26 “(B) In the opinion of the court, there is reason to believe that the defendant is a sexually vio- 27 lent dangerous offender as defined in ORS 137.765. 28 “(b) The court may appoint one or more qualified psychiatrists or psychologists to examine the 29 defendant in the local correctional facility. 30 “(2) The state shall pay all costs connected with an examination under this section. 31 “(3) The examination performed pursuant to this section must be completed within 30 days if the 32 defendant is in custody or within 60 days if the defendant is not in custody. The court may order 33 extensions not exceeding 30 days. Each psychiatrist or psychologist appointed to examine a defend- 34 ant under this section shall file with the court a written report of findings and conclusions, includ- 35 ing an evaluation of whether the defendant is predisposed to commit a crime listed in ORS 137.765 36 (3) because the defendant has: 37 “(a) Psychopathic personality features; and 38 “(b) Sexually deviant arousal patterns or interests. 39 “(4) No statement made by a defendant under this section may be used against the defendant in 40 any civil proceeding or in any other criminal proceeding. 41 “(5) Upon receipt of the examination and presentence reports the court shall set a time for a 42 sentence hearing. At the sentence hearing the district attorney and the defendant may question any 43 psychiatrist or psychologist who examined the defendant pursuant to this section. 44 “(6) If, after considering the presentence report, the examination reports and the evidence 45 in the case or in the sentence hearing, the [jury or, if the defendant waives the right to a jury trial,

SA to SB 528 Page 9 1 the] court finds that the defendant is a sexually violent dangerous offender, the court shall sentence 2 the defendant as provided in ORS 137.765. 3 “[(7) The fact that a person is a sexually violent dangerous offender is an enhancement fact, as 4 defined in section 1 of this 2005 Act, and sections 2 to 7 of this 2005 Act apply to making a determi- 5 nation of the fact.] 6 “(7) Unless the parties stipulate otherwise, the state has the burden of proving beyond 7 a reasonable doubt that the person is a sexually violent dangerous offender. 8 “SECTION 18. ORS 136.280 is amended to read: 9 “136.280. If, before the final submission of the case, any juror dies or is unable to perform the 10 duty because of illness or other cause which the court deems sufficient, the juror shall be dismissed 11 from the case. Except as provided by ORS 163.150, the court shall cause to be drawn the name of 12 an alternate juror, who shall then become a member of the jury as though the alternate juror had 13 been selected as one of the original jurors. Except as provided in section 4 (5) of this 2005 Act, 14 any alternate juror not selected to become a member of the jury shall be dismissed from the case 15 upon its final submission to the jury. 16 “SECTION 19. ORS 136.280, as amended by section 18 of this 2005 Act, is amended to read: 17 “136.280. If, before the final submission of the case, any juror dies or is unable to perform the 18 duty because of illness or other cause which the court deems sufficient, the juror shall be dismissed 19 from the case. Except as provided by ORS 163.150, the court shall cause to be drawn the name of 20 an alternate juror, who shall then become a member of the jury as though the alternate juror had 21 been selected as one of the original jurors. [Except as provided in section 4 (5) of this 2005 Act,] Any 22 alternate juror not selected to become a member of the jury shall be dismissed from the case upon 23 its final submission to the jury. 24 “SECTION 20. (1) Sections 1 to 7 of this 2005 Act are repealed on January 2, 2008. 25 “(2) The amendments to ORS 40.015, 136.280, 137.765, 137.767, 161.725 and 161.735 by 26 sections 13 to 17 and 19 of this 2005 Act become operative on January 2, 2008. 27 “SECTION 21. Sections 1 to 7 of this 2005 Act and the amendments to ORS 40.015, 136.280, 28 137.765, 137.767, 161.725 and 161.735 by sections 8 to 12 and 18 of this 2005 Act apply to: 29 “(1) A criminal action commencing on or after the effective date of this 2005 Act and 30 before January 2, 2008; 31 “(2) A criminal action commencing prior to the effective date of this 2005 Act in which 32 a sentence has not been imposed prior to the effective date of this 2005 Act; and 33 “(3) A case that has been remanded to a trial court that will result in resentencing for 34 which a new sentence has not been imposed prior to the effective date of this 2005 Act. 35 “SECTION 22. In order to rely on an enhancement fact, as defined in section 1 of this 36 2005 Act, to increase the sentence that may be imposed upon remand of a case described in 37 section 21 (3) of this 2005 Act, the state, within a reasonable time before resentencing, shall 38 notify the defendant of its intention to rely on the enhancement fact by providing written 39 notice to the defendant of the enhancement fact and the state′s intention to rely on it. 40 “SECTION 23. (1) For the purpose of imposing a new sentence in a case that has been 41 remanded to a trial court that will result in resentencing for which a new sentence has not 42 been imposed prior to the effective date of this 2005 Act, the court may impanel a new jury 43 to determine the enhancement facts as defined in section 1 of this 2005 Act. Laws relating 44 to impaneling a jury for a criminal trial apply to impaneling a jury under this section. 45 “(2) Section 7 (3) of this 2005 Act does not apply to a case in which the court has

SA to SB 528 Page 10 1 impaneled a new jury under this section. In a case with a jury impaneled under this section, 2 an enhancement fact is not proven unless the number of jurors who find that the state has 3 met its burden of proof with regard to the enhancement fact is equal to or greater than the 4 number of jurors that was required to find the defendant guilty of the crime. 5 “SECTION 24. This 2005 Act being necessary for the immediate preservation of the public 6 peace, health and safety, an emergency is declared to exist, and this 2005 Act takes effect 7 on its passage.”. 8

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