00 CS FOR HOUSE BILL NO. 14(JUD) 01 "An Act relating to assault in the first degree; relating to sex offenses; relating to the 02 definition of 'dangerous instrument'; providing for an aggravating factor at sentencing 03 for strangulation that results in unconsciousness; relating to the duties of the 04 prosecuting attorney; and relating to victim notifications." 05 BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF ALASKA: 06 * Section 1. AS 11.41.200(a) is amended to read: 07 (a) A person commits the crime of assault in the first degree if 08 (1) that person recklessly causes serious physical injury to another by 09 means of a dangerous instrument; 10 (2) with intent to cause serious physical injury to another, the person 11 causes serious physical injury to any person; 12 (3) the person knowingly engages in conduct that results in serious 13 physical injury to another under circumstances manifesting extreme indifference to the 14 value of human life; [OR] 01 (4) that person recklessly causes serious physical injury to another by 02 repeated assaults using a dangerous instrument, even if each assault individually does 03 not cause serious physical injury; or 04 (5) that person knowingly causes another to become unconscious 05 by means of a dangerous instrument; in this paragraph, "dangerous instrument" 06 has the meaning given in AS 11.81.900(b)(15)(B). 07 * Sec. 2. AS 11.81.900(b)(15) is amended to read: 08 (15) "dangerous instrument" means 09 (A) any deadly weapon or anything that, under the 10 circumstances in which it is used, attempted to be used, or threatened to be 11 used, is capable of causing death or serious physical injury; or 12 (B) hands, other body parts, or other objects when used to 13 impede normal breathing or circulation of blood by applying pressure on the 14 throat or neck or obstructing the nose or mouth; 15 * Sec. 3. AS 11.81.900(b)(60) is amended to read: 16 (60) "sexual contact" means 17 (A) the defendant's 18 (i) knowingly touching, directly or through clothing, the 19 victim's genitals, anus, or female breast; [OR] 20 (ii) knowingly causing the victim to touch, directly or 21 through clothing, the defendant's or victim's genitals, anus, or female 22 breast; or 23 (iii) knowingly ejaculating on the victim; 24 (B) but "sexual contact" does not include acts 25 (i) that may reasonably be construed to be normal 26 caretaker responsibilities for a child, interactions with a child, or 27 affection for a child; 28 (ii) performed for the purpose of administering a 29 recognized and lawful form of treatment that is reasonably adapted to 30 promoting the physical or mental health of the person being treated; or 31 (iii) that are a necessary part of a search of a person 01 committed to the custody of the Department of Corrections or the 02 Department of Health and Social Services; 03 * Sec. 4. AS 12.55.155(c) is amended to read: 04 (c) The following factors shall be considered by the sentencing court if proven 05 in accordance with this section, and may allow imposition of a sentence above the 06 presumptive range set out in AS 12.55.125: 07 (1) a person, other than an accomplice, sustained physical injury as a 08 direct result of the defendant's conduct; 09 (2) the defendant's conduct during the commission of the offense 10 manifested deliberate cruelty to another person; 11 (3) the defendant was the leader of a group of three or more persons 12 who participated in the offense; 13 (4) the defendant employed a dangerous instrument in furtherance of 14 the offense; 15 (5) the defendant knew or reasonably should have known that the 16 victim of the offense was particularly vulnerable or incapable of resistance due to 17 advanced age, disability, ill health, homelessness, consumption of alcohol or drugs, or 18 extreme youth or was for any other reason substantially incapable of exercising 19 normal physical or mental powers of resistance; 20 (6) the defendant's conduct created a risk of imminent physical injury 21 to three or more persons, other than accomplices; 22 (7) a prior felony conviction considered for the purpose of invoking a 23 presumptive range under this chapter was of a more serious class of offense than the 24 present offense; 25 (8) the defendant's prior criminal history includes conduct involving 26 aggravated assaultive behavior, repeated instances of assaultive behavior, repeated 27 instances of cruelty to animals proscribed under AS 11.61.140(a)(1) and (3) - (5), or a 28 combination of assaultive behavior and cruelty to animals proscribed under 29 AS 11.61.140(a)(1) and (3) - (5); in this paragraph, "aggravated assaultive behavior" 30 means assault that is a felony under AS 11.41, or a similar provision in another 31 jurisdiction; 01 (9) the defendant knew that the offense involved more than one victim; 02 (10) the conduct constituting the offense was among the most serious 03 conduct included in the definition of the offense; 04 (11) the defendant committed the offense under an agreement that the 05 defendant either pay or be paid for the commission of the offense, and the pecuniary 06 incentive was beyond that inherent in the offense itself; 07 (12) the defendant was on release under AS 12.30 for another felony 08 charge or conviction or for a misdemeanor charge or conviction having assault as a 09 necessary element; 10 (13) the defendant knowingly directed the conduct constituting the 11 offense at an active officer of the court or at an active or former judicial officer, 12 prosecuting attorney, law enforcement officer, correctional employee, firefighter, 13 emergency medical technician, paramedic, ambulance attendant, or other emergency 14 responder during or because of the exercise of official duties; 15 (14) the defendant was a member of an organized group of five or 16 more persons, and the offense was committed to further the criminal objectives of the 17 group; 18 (15) the defendant has three or more prior felony convictions; 19 (16) the defendant's criminal conduct was designed to obtain 20 substantial pecuniary gain and the risk of prosecution and punishment for the conduct 21 is slight; 22 (17) the offense was one of a continuing series of criminal offenses 23 committed in furtherance of illegal business activities from which the defendant 24 derives a major portion of the defendant's income; 25 (18) the offense was a felony 26 (A) specified in AS 11.41 and was committed against a spouse, 27 a former spouse, or a member of the social unit made up of those living 28 together in the same dwelling as the defendant; 29 (B) specified in AS 11.41.410 - 11.41.458 and the defendant 30 has engaged in the same or other conduct prohibited by a provision of 31 AS 11.41.410 - 11.41.460 involving the same or another victim; 01 (C) specified in AS 11.41 that is a crime involving domestic 02 violence and was committed in the physical presence or hearing of a child 03 under 16 years of age who was, at the time of the offense, living within the 04 residence of the victim, the residence of the perpetrator, or the residence where 05 the crime involving domestic violence occurred; 06 (D) specified in AS 11.41 and was committed against a person 07 with whom the defendant has a dating relationship or with whom the defendant 08 has engaged in a sexual relationship; or 09 (E) specified in AS 11.41.434 - 11.41.458 or AS 11.61.128 and 10 the defendant was 10 or more years older than the victim; 11 (19) the defendant's prior criminal history includes an adjudication as a 12 delinquent for conduct that would have been a felony if committed by an adult; 13 (20) the defendant was on furlough under AS 33.30 or on parole or 14 probation for another felony charge or conviction that would be considered a prior 15 felony conviction under AS 12.55.145(a)(1)(B); 16 (21) the defendant has a criminal history of repeated instances of 17 conduct violative of criminal laws, whether punishable as felonies or misdemeanors, 18 similar in nature to the offense for which the defendant is being sentenced under this 19 section; 20 (22) the defendant knowingly directed the conduct constituting the 21 offense at a victim because of that person's race, sex, color, creed, physical or mental 22 disability, ancestry, or national origin; 23 (23) the defendant is convicted of an offense specified in AS 11.71 and 24 (A) the offense involved the delivery of a controlled substance 25 under circumstances manifesting an intent to distribute the substance as part of 26 a commercial enterprise; or 27 (B) at the time of the conduct resulting in the conviction, the 28 defendant was caring for or assisting in the care of a child under 10 years of 29 age; 30 (24) the defendant is convicted of an offense specified in AS 11.71 and 31 the offense involved the transportation of controlled substances into the state; 01 (25) the defendant is convicted of an offense specified in AS 11.71 and 02 the offense involved large quantities of a controlled substance; 03 (26) the defendant is convicted of an offense specified in AS 11.71 and 04 the offense involved the distribution of a controlled substance that had been 05 adulterated with a toxic substance; 06 (27) the defendant, being 18 years of age or older, 07 (A) is legally accountable under AS 11.16.110(2) for the 08 conduct of a person who, at the time the offense was committed, was under 18 09 years of age and at least three years younger than the defendant; or 10 (B) is aided or abetted in planning or committing the offense by 11 a person who, at the time the offense was committed, was under 18 years of 12 age and at least three years younger than the defendant; 13 (28) the victim of the offense is a person who provided testimony or 14 evidence related to a prior offense committed by the defendant; 15 (29) the defendant committed the offense for the benefit of, at the 16 direction of, or in association with a criminal street gang; 17 (30) the defendant is convicted of an offense specified in AS 11.41.410 18 - 11.41.455, and the defendant knowingly supplied alcohol or a controlled substance to 19 the victim in furtherance of the offense with the intent to make the victim 20 incapacitated; in this paragraph, "incapacitated" has the meaning given in 21 AS 11.41.470; 22 (31) the defendant's prior criminal history includes convictions for five 23 or more crimes in this or another jurisdiction that are class A misdemeanors under the 24 law of this state, or having elements similar to a class A misdemeanor; two or more 25 convictions arising out of a single continuous episode are considered a single 26 conviction; however, an offense is not a part of a continuous episode if committed 27 while attempting to escape or resist arrest or if it is an assault on a uniformed or 28 otherwise clearly identified peace officer or correctional employee; notice and denial 29 of convictions are governed by AS 12.55.145(b) - (d); 30 (32) the offense is a violation of AS 11.41 or AS 11.46.400 and the 31 offense occurred on school grounds, on a school bus, at a school-sponsored event, or 01 in the administrative offices of a school district if students are educated at that office; 02 in this paragraph, 03 (A) "school bus" has the meaning given in AS 11.71.900; 04 (B) "school district" has the meaning given in AS 47.07.063; 05 (C) "school grounds" has the meaning given in AS 11.71.900; 06 (33) the offense was a felony specified in AS 11.41.410 - 11.41.455, 07 the defendant had been previously diagnosed as having or having tested positive for 08 HIV or AIDS, and the offense either (A) involved penetration, or (B) exposed the 09 victim to a risk or a fear that the offense could result in the transmission of HIV or 10 AIDS; in this paragraph, "HIV" and "AIDS" have the meanings given in 11 AS 18.15.310; 12 (34) the defendant committed the offense on, or to affect persons or 13 property on, the premises of a recognized shelter or facility providing services to 14 victims of domestic violence or sexual assault; 15 (35) the defendant knowingly directed the conduct constituting the 16 offense at a victim because that person was 65 years of age or older; 17 (36) the defendant committed the offense at a health care facility and 18 knowingly directed the conduct constituting the offense at a medical professional 19 during or because of the medical professional's exercise of professional duties; in this 20 paragraph, 21 (A) "health care facility" has the meaning given in 22 AS 18.07.111; 23 (B) "medical professional" has the meaning given in 24 AS 12.55.135(k); 25 (37) the defendant knowingly caused the victim to become 26 unconscious by means of a dangerous instrument; in this paragraph, "dangerous 27 instrument" has the meaning given in AS 11.81.900(b)(15)(B). 28 * Sec. 5. AS 12.61.015(a) is amended to read: 29 (a) If a victim of a felony, a sex offense as defined in AS 12.63.100, or a 30 crime involving domestic violence requests, the prosecuting attorney shall make a 31 reasonable effort to 01 (1) confer with the person against whom the offense has been 02 perpetrated about that person's testimony before the defendant's trial; 03 (2) in a manner reasonably calculated to give prompt actual notice, 04 notify the victim 05 (A) of the defendant's conviction and the crimes of which the 06 defendant was convicted; 07 (B) of the victim's right in a case that is a felony to make a 08 written or oral statement for use in preparation of the defendant's presentence 09 report, and of the victim's right to appear personally at the defendant's 10 sentencing hearing to present a written statement and to give sworn testimony 11 or an unsworn oral presentation; 12 (C) of the address and telephone number of the office that will 13 prepare the presentence report; and 14 (D) of the time and place of the sentencing proceeding; 15 (3) notify the victim in writing of the final disposition of the case 16 within 30 days after final disposition of the case; 17 (4) confer with the victim or the victim's legal guardian concerning a 18 proposed plea agreement before entering into the plea [AN] agreement to ask the 19 victim or the victim's legal guardian whether the victim is in agreement with the 20 proposed plea agreement; the prosecuting attorney shall record whether the 21 victim or the victim's legal guardian is in agreement with the proposed plea 22 agreement; 23 (5) inform the victim of a pending motion that may substantially delay 24 the prosecution and inform the court of the victim's position on the motion; in this 25 paragraph, a "substantial delay" is 26 (A) for a misdemeanor, a delay of one month or longer; 27 (B) for a felony, a delay of two months or longer; and 28 (C) for an appeal, a delay of six months or longer. 29 * Sec. 6. AS 12.61.015 is amended by adding new subsections to read: 30 (d) The court may reschedule a hearing to consider a plea agreement as 31 needed to allow additional time to comply with the victim notification requirements 01 under (a)(2) and (4) of this section. 02 (e) Nothing in this section requires a victim or a victim's legal guardian to 03 provide a response to a prosecuting attorney regarding a plea agreement or requires the 04 prosecuting attorney to be bound by the victim's or legal guardian's response regarding 05 the plea agreement. 06 * Sec. 7. The uncodified law of the State of Alaska is amended by adding a new section to 07 read: 08 APPLICABILITY. AS 11.41.200(a), as amended by sec. 1 of this Act, 09 AS 11.81.900(b)(15), as amended by sec. 2 of this Act, AS 11.81.900(b)(60), as amended by 10 sec. 3 of this Act, and AS 12.55.155(c), as amended by sec. 4 of this Act, apply to offenses 11 committed on or after the effective date of this Act.