Second Regular Session Seventieth General Assembly STATE OF COLORADO INTRODUCED LLS NO. 16-0579.01 Michael Dohr x4347 HOUSE BILL 16-1233 HOUSE SPONSORSHIP Ransom, SENATE SPONSORSHIP (None), House Committees Senate Committees State, Veterans, & Military Affairs A BILL FOR AN ACT Concerning modifying the procedure for sentencing in class 1 felonies when the death penalty is sought. Bill Summary (Note: This summary applies to this bill as introduced and does not reflect any amendments that may be subsequently adopted. If this bill passes third reading in the house of introduction, a bill summary that applies to the reengrossed version of this bill will be available at http://www.leg.state.co.us/billsummaries.) The bill changes the process for sentencing for class 1 felonies when the death penalty is sought. The bill creates an aggravation phase at which the prosecution must prove one or more aggravating circumstances beyond a reasonable doubt to the unanimous satisfaction of a jury. The bill also creates a penalty phase at which the defendant has the burden to prove one or more mitigating circumstances by a preponderance of evidence, and the jury determines unanimously whether the mitigating circumstances call for leniency. The bill also establishes a procedure for a retrial of the aggravation phase and the penalty phase in the event the jury cannot reach a unanimous verdict. Be it enacted by the General Assembly of the State of Colorado: SECTION 1. In Colorado Revised Statutes, 16-8-103.6, amend (2) (a) as follows: 16-8-103.6. Waiver of privilege. (2) (a) A defendant who places his or her mental condition at issue by pleading not guilty by reason of insanity pursuant to section 16-8-103 or disclosing witnesses who may provide evidence concerning the defendant's mental condition during a sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S., or, for offenses committed on or after July 1, 1999, by seeking to introduce evidence concerning his or her mental condition pursuant to section 16-8-107 (3) waives any claim of confidentiality or privilege as to communications made by the defendant to a physician or psychologist in the course of an examination or treatment for such mental condition for the purpose of any trial, hearing on the issue of such mental condition, or sentencing hearing conducted pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S. The court shall order both the prosecutor and the defendant to exchange the names, addresses, reports, and statements of any physician or psychologist who has examined or treated the defendant for such mental condition. SECTION 2. In Colorado Revised Statutes, 16-8-106, amend (2) (c) and (3) (b) as follows: 16-8-106. Examinations and report. (2) (c) The defendant shall cooperate with psychiatrists, forensic psychologists, and other personnel conducting any examination ordered by the court pursuant to this section. Statements made by the defendant in the course of such examination shall be protected as provided in section 16-8-107. If the defendant does not cooperate with psychiatrists, forensic psychologists, and other personnel conducting the examination, the court shall not allow the defendant to call any psychiatrist, forensic psychologist, or other expert witness to provide evidence at the defendant's trial concerning the defendant's mental condition including, but not limited to, providing evidence on the issue of insanity or at any sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S. In addition, the fact of the defendant's noncooperation with psychiatrists, forensic psychologists, and other personnel conducting the examination may be admissible in the defendant's trial to rebut any evidence introduced by the defendant with regard to the defendant's mental condition including, but not limited to, the issue of insanity and in any sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S. This paragraph (c) shall apply to offenses committed on or after July 1, 1999. (3) (b) To aid in forming an opinion as to the mental condition of the defendant, it is permissible in the course of an examination under this section to use confessions and admissions of the defendant and any other evidence of the circumstances surrounding the commission of the offense, as well as the medical and social history of the defendant, in questioning the defendant. When the defendant is noncooperative with psychiatrists, forensic psychologists, and other personnel conducting the examination, an opinion of the mental condition of the defendant may be rendered by such psychiatrists, forensic psychologists, or other personnel based upon such confessions, admissions, and any other evidence of the circumstances surrounding the commission of the offense, as well as the known medical and social history of the defendant, and such opinion may be admissible into evidence at trial and in any sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S. It shall also be permissible to conduct a narcoanalytic interview of the defendant with such drugs as are medically appropriate and to subject the defendant to polygraph examination. In any trial or hearing on the issue of the defendant's sanity or eligibility for release and in any sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S., the physicians and other personnel conducting the examination may testify to the results of any such procedures and the statements and reactions of the defendant insofar as the same entered into the formation of their opinions as to the mental condition of the defendant both at the time of the commission of the alleged offense and at the present time. This paragraph (b) shall apply to offenses committed on or after July 1, 1995. SECTION 3. In Colorado Revised Statutes, 16-8-107, amend (1) (b), (1) (c), and (1.5) (b) as follows: 16-8-107. Evidence. (1) (b) Evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination under section 16-8-108 or acquired pursuant to section 16-8-103.6 is admissible at any sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102, C.R.S., only to prove the existence or absence of any mitigating factor. (c) If the defendant testifies in his or her own behalf upon the trial of the issues raised by the plea of not guilty or at a sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102, C.R.S., the provisions of this section shall not bar any evidence used to impeach or rebut the defendant's testimony. (1.5) (b) Evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a court-ordered examination under section 16-8-106 or acquired pursuant to section 16-8-103.6 is admissible at any sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S., only to prove the existence or absence of any mitigating factor. SECTION 4. In Colorado Revised Statutes, 16-8.5-108, amend (1) (b) and (1) (c) as follows: 16-8.5-108. Evidence. (1) (b) Evidence acquired directly or indirectly for the first time from a communication derived from the defendant's mental processes during the course of a competency evaluation or involuntary medication proceeding is admissible at any sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102, C.R.S., only to prove the existence or absence of any mitigating factor. (c) If the defendant testifies on his or her own behalf upon the trial of the issues raised by the plea of not guilty or, for offenses that occurred before July 1, 1995, a plea of not guilty by reason of impaired mental condition, or at a sentencing hearing held pursuant to section section 18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102, C.R.S., the provisions of this section shall not bar any evidence used to impeach or rebut the defendant's testimony. SECTION 5. In Colorado Revised Statutes, 16-12-202, add (5) as follows: 16-12-202. Unitary procedure for appeals - scope and applicability. (5) For cases in which a death sentence is imposed pursuant to section 18-1.3-1201.5, C.R.S., this part 2 applies. SECTION 6. In Colorado Revised Statutes, 18-1-409, amend (1) as follows: 18-1-409. Appellate review of sentence for a felony. (1) When sentence is imposed upon any person following a conviction of any felony, other than a class 1 felony in which a death sentence is automatically reviewed pursuant to section section 18-1.3-1201 (6), 18-1.3-1201.5 (22), 18-1.3-1302 (6), or 18-1.4-102 (6), the person convicted shall have the right to one appellate review of the propriety of the sentence, having regard to the nature of the offense, the character of the offender, and the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based; except that, if the sentence is within a range agreed upon by the parties pursuant to a plea agreement, the defendant shall not have the right of appellate review of the propriety of the sentence. The procedures to be employed in the review shall be as provided by supreme court rule. SECTION 7. In Colorado Revised Statutes, 18-1.3-104, amend (1) (c) as follows: 18-1.3-104. Alternatives in imposition of sentence. (1) Within the limitations of the applicable statute pertaining to sentencing and subject to the provisions of this title, the trial court has the following alternatives in entering judgment imposing a sentence: (c) The defendant shall be sentenced to death in those cases in which a death sentence is required under section section 18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102. SECTION 8. In Colorado Revised Statutes, 18-1.3-401, amend (4) (a) as follows: 18-1.3-401. Felonies classified - presumptive penalties. (4) (a) A person who has been convicted of a class 1 felony shall be punished by life imprisonment in the department of corrections unless a proceeding held to determine sentence according to the procedure set forth in section section 18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102, results in a verdict that requires imposition of the death penalty, in which event such person shall be sentenced to death. As to any person sentenced for a class 1 felony, for an act committed on or after July 1, 1985, and before July 1, 1990, life imprisonment shall mean imprisonment without the possibility of parole for forty calendar years. As to any person sentenced for a class 1 felony, for an act committed on or after July 1, 1990, life imprisonment shall mean imprisonment without the possibility of parole. SECTION 9. In Colorado Revised Statutes, 18-1.3-801, amend (1) (e) as follows: 18-1.3-801. Punishment for habitual criminals. (1) (e) Nothing in this subsection (1) is to be construed to prohibit a person convicted of a class 1 felony from being sentenced pursuant to section section 18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102. SECTION 10. In Colorado Revised Statutes, 18-1.3-1201, add (9) as follows: 18-1.3-1201. Imposition of sentence in class 1 felonies - appellate review. (9) This section applies to offenses occurring before February 1, 2017. SECTION 11. In Colorado Revised Statutes, add 18-1.3-1201.5 as follows: 18-1.3-1201.5. Imposition of sentence in class 1 felonies - appellate review - definitions. (1) (a) Upon conviction of guilt of a defendant of a class 1 felony, the trial court shall conduct a separate sentencing hearing to determine whether the defendant should be sentenced to death or life imprisonment, unless the defendant was under the age of eighteen years at the time of the commission of the offense or unless the defendant has been determined to be a mentally retarded defendant pursuant to part 11 of this article, in either of which cases, the defendant shall be sentenced to life imprisonment. The sentencing hearing shall be conducted by the trial judge before the trial jury as soon as practicable. Alternate jurors shall not be excused from the case prior to submission of the issue of guilt to the trial jury and shall remain separately sequestered until a verdict is entered by the trial jury. If the verdict of the trial jury is that the defendant is guilty of a class 1 felony, the alternate jurors shall sit as alternate jurors on the issue of punishment. If, for any reason satisfactory to the court, any member or members of the trial jury are excused from participation in the sentencing hearing, the trial judge shall replace each juror or jurors with an alternate juror or jurors. In the event that the defendant pleads guilty, the court shall impanel a jury specifically to conduct a sentencing hearing. After a guilty verdict or guilty plea, the defendant may only waive his or her right to have a jury sentencing hearing after a full advisement by the court regarding the consequences of the waiver. (b) All admissible evidence presented by either the prosecuting attorney or the defendant that the court deems relevant to the nature of the crime, and the character, background, and history of the defendant, including any evidence presented in the guilt phase of the trial, any matters relating to any of the aggravating or mitigating circumstances enumerated in this section, and any matters relating to the personal characteristics of the victim and the impact of the crimes on the victim's family may be presented. Any such evidence, including but not limited to the testimony of members of the victim's immediate family, as defined in section 24-4.1-302 (6), C.R.S., that the court deems to have probative value may be received, as long as each party is given an opportunity to rebut such evidence. The prosecuting attorney and the defendant or the defendant's counsel shall be permitted to present arguments for or against a sentence of death. The jury shall be instructed that life imprisonment means imprisonment for life without the possibility of parole. (2) In the aggravation phase of the sentencing proceeding that is held pursuant to this section, the trial court shall apply the rules of evidence applicable to criminal trials to admissibility of information relevant to any of the aggravating circumstances enumerated in subsection (6) of this section. The prosecution shall establish the existence of any of the aggravating circumstances and shall prove the existence of the aggravating circumstances beyond a reasonable doubt. (3) At the penalty phase of the sentencing proceeding that is held pursuant to this section, the prosecution or the defendant may present any information that is relevant to any of the mitigating circumstances enumerated in subsection (7) of this section, regardless of its admissibility under the rules governing admission of evidence at criminal trials. The defendant shall establish the existence of the mitigating circumstances included in this section and shall prove the existence of the mitigating circumstances by a preponderance of the evidence. If the trier of fact is a jury, the jurors do not have to agree unanimously that a mitigating circumstance has been proven to exist. Each juror may consider any mitigating circumstance found by that juror in determining the appropriate penalty. (4) Evidence that is admitted at the trial and that relates to any aggravating or mitigating circumstances is deemed admitted as evidence at a sentencing proceeding if the sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge considering that evidence is the same jury or judge that determined the defendant's guilt. The prosecution and the defendant shall be permitted to rebut any information received at the aggravation or penalty phase of the sentencing proceeding and shall be given fair opportunity to present argument as to whether the information is sufficient to establish the existence of any of the aggravating circumstances included in this section. (5) In determining whether to impose a sentence of death or life imprisonment, the sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge shall take into account the aggravating and mitigating circumstances that have been proven. The sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge shall impose a sentence of death if the sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge finds one or more of the aggravating circumstances enumerated in subsection (6) this section and then determines that there are no mitigating circumstances sufficiently substantial to call for leniency. (6) The sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge may consider the following aggravating circumstances in determining whether to impose a sentence of death: (a) The class 1 felony was committed by a person under sentence of imprisonment for a class 1, 2, or 3 felony as defined by Colorado law or United States law, or for a crime committed in another state or the United States that would constitute a class 1, 2, or 3 felony as defined by Colorado law; or (b) The defendant was previously convicted in this state of a class 1 or 2 felony involving violence as specified in section 18-1.3-406 or was previously convicted by another state or the United States of an offense that would constitute a class 1 or 2 felony involving violence as defined by Colorado law in section 18-1.3-406; or (c) The defendant intentionally killed any of the following persons while the person was engaged in the course of the performance of the person's official duties, and the defendant knew or reasonably should have known that the victim was a person engaged in the performance of the person's official duties, or the victim was intentionally killed in retaliation for the performance of the victim's official duties: (I) A peace officer or former peace officer as described in section 16-2.5-101, C.R.S.; or (II) A firefighter as defined in section 24-33.5-1202 (4), C.R.S.; or (III) An emergency medical service provider as defined in section 18-3-201 (1); or (IV) A judge, referee, or former judge or referee of any court of record in the state or federal system or in any other state court system or a judge or former judge in any municipal court in this state or in any other state. For purposes of this subparagraph (IV), the term "referee" shall include a hearing officer or any other officer who exercises judicial functions. (V) An elected state, county, or municipal official; or (VI) A federal law enforcement officer or agent or former federal law enforcement officer or agent; or (d) The defendant intentionally killed a person kidnapped or being held as a hostage by the defendant or by anyone associated with the defendant; or (e) The defendant has been a party to an agreement to kill another person in furtherance of which a person has been intentionally killed; or (f) The defendant committed the offense while lying in wait, from ambush, or by use of an explosive or incendiary device or a chemical, biological, or radiological weapon. As used in this paragraph (f), "explosive or incendiary device" means: (I) Dynamite and all other forms of high explosives; or (II) Any explosive bomb, grenade, missile, or similar device; or (III) Any incendiary bomb or grenade, fire bomb, or similar device, including any device that consists of or includes a breakable container including a flammable liquid or compound, and a wick composed of any material that, when ignited, is capable of igniting such flammable liquid or compound, and can be carried or thrown by one individual acting alone; or (g) The defendant committed a class 1, 2, or 3 felony and, in the course of or in furtherance of such or immediate flight therefrom, the defendant intentionally caused the death of a person other than one of the participants; or (h) The class 1 felony was committed for pecuniary gain; or (i) In the commission of the offense, the defendant knowingly created a grave risk of death to another person in addition to the victim of the offense; or (j) The defendant committed the offense in an especially heinous, cruel, or depraved manner; or (k) The class 1 felony was committed for the purpose of avoiding or preventing a lawful arrest or prosecution or effecting an escape from custody. This circumstance shall include the intentional killing of a witness to a criminal offense. (l) The defendant unlawfully and intentionally, knowingly, or with universal malice manifesting extreme indifference to the value of human life generally, killed two or more persons during the commission of the same criminal episode; or (m) The defendant intentionally killed a child who has not yet attained twelve years of age; or (n) The defendant committed the class 1 felony against the victim because of the victim's race, color, ancestry, religion, or national origin; or (o) The defendant's possession of the weapon used to commit the class 1 felony constituted a felony offense under the laws of this state or the United States; or (p) The defendant intentionally killed more than one person in more than one criminal episode; or (q) The victim was a pregnant woman and the defendant intentionally killed the victim, knowing she was pregnant. (7) The sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge shall consider as mitigating circumstances any circumstances proffered by the defendant or the state that are relevant in determining whether to impose a sentence less than death, including any aspect of the defendant's character, propensities, or record and any of the circumstances of the offense, including but not limited to the following: (a) The youth or old age of the defendant at the time of the crime; or (b) The defendant's capacity to appreciate the wrongfulness of the defendant's conduct or to conform the defendant's conduct to the requirements of law was significantly impaired, but not so impaired as to constitute a defense to prosecution; or (c) The defendant was under unusual and substantial duress from an external source, although not such duress as to constitute a defense to prosecution; or (d) The defendant was a principal in the offense that was committed by another, but the defendant's participation was relatively minor, although not so minor as to constitute a defense to prosecution; or (e) The defendant could not reasonably have foreseen that the defendant's conduct in the course of the commission of the offense for which the defendant was convicted would cause, or would create a grave risk of causing, death to another person; or (f) The emotional state of the defendant at the time the crime was committed; or (g) The absence of any significant prior conviction; or (h) The extent of the defendant's cooperation with law enforcement officers or agencies and with the office of the prosecuting district attorney; or (i) The influence of drugs or alcohol; or (j) The good faith, although mistaken, belief by the defendant that circumstances existed that constituted a moral justification for the defendant's conduct; or (k) The defendant is not a continuing threat to society; or (l) Any other evidence that in the court's determination bears on the question of mitigation. (8) If the state has filed a notice of intent to seek the death penalty and the defendant is convicted of first degree murder, the sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge at the sentencing proceeding shall determine whether to impose a sentence of death in accordance with the procedures provided in this section. (9) Within thirty days after arraignment, the prosecution shall file written notice of intent to seek the death penalty including one or more of the aggravating circumstances under this section. (10) If the defendant is convicted at trial or pleads guilty to a class 1 felony in which the prosecution has filed a written notice of intent to seek the death penalty, the court shall immediately proceed to a sentencing jury, unless the defendant is allowed to waive his or her right to a sentencing jury, in which case the trial court judge shall conduct the sentencing proceeding. The sentencing jury or, if the defendant is allowed to waive his right to a sentencing jury, the trial judge shall determine whether one or more aggravating circumstances has been proven. This proceeding is called the aggravation phase of the sentencing proceeding. (11) If the sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge finds that one or more of the alleged aggravating circumstances have been proven, the sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge shall then immediately determine whether the death penalty should be imposed. This proceeding is the penalty phase of the sentencing proceeding. (12) At the aggravation phase, the sentencing jury or, if the defendant is allowed to waive a sentencing jury, the sentencing judge shall make a special finding on whether each alleged aggravating circumstance has been proven based on the evidence that was presented at the trial or at the aggravation phase. If the trier of fact is a jury, a unanimous verdict is required to find that the aggravating circumstance has been proven. If the sentencing jury unanimously finds that an aggravating circumstance has not been proven, the defendant is entitled to a special finding that the aggravating circumstance has not been proven. If the sentencing jury unanimously finds no aggravating circumstances, the court shall then sentence the defendant to life in prison without parole. (13) The penalty phase must be held immediately after the sentencing jury or, if the defendant is allowed to waive a sentencing hearing, the sentencing judge finds, at the aggravation phase, that one or more of the aggravating circumstances have been proven. The penalty phase must be held even if the sentencing jury or, if the defendant is allowed to waive a sentencing hearing, the sentencing judge finds that any of the remaining aggravating circumstances alleged have not been proven or the sentencing jury or, if the defendant is allowed to waive a sentencing hearing, the sentencing judge does not agree on the issue of whether any of the remaining aggravating circumstances alleged have been proven. (14) At the penalty phase, the defendant and the prosecution may present any evidence that is relevant to the determination of whether there is mitigation that is sufficiently substantial to call for leniency. In order for the sentencing jury or, if the defendant is allowed to waive a sentencing hearing, the sentencing judge to make this determination, regardless of whether the defendant presents evidence of mitigation, the prosecution may present any evidence that demonstrates that the defendant should not be shown leniency including any evidence regarding the defendant's character, propensities, criminal record, other acts, the impact of the crime on the victim, and the impact of the crime on the victim's family. (15) The sentencing jury shall determine unanimously whether death is the appropriate sentence or, if the defendant is allowed to waive a sentencing hearing, the sentencing judge shall determine whether death is the appropriate sentence. If trier of fact is a jury and the jury unanimously determines that the death penalty is not appropriate, the court shall sentence the defendant to life in prison without parole. (16) At the aggravation phase, if the trier of fact is a jury and the jury is unable to reach a unanimous verdict on any of the alleged aggravating circumstances and the jury has not found that at least one of the alleged aggravating circumstances has been proven or has not found that all of the alleged aggravating circumstances have not been proven, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of the aggravating circumstances that the first jury found not proved by unanimous verdict. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life in prison without parole. (17) At the penalty phase, if the trier of fact is a jury and the jury is unable to reach a verdict, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of the aggravating circumstances that the first jury found by unanimous verdict to be proved or not proved. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life in prison without parole. (18) If the jury that rendered a verdict of guilty is not the jury first impaneled for the aggravation phase, the jury impaneled in the aggravation phase shall not retry the issue of the defendant's guilt. If the jury impaneled in the aggravation phase is unable to reach a verdict on any of the alleged aggravating circumstances and the jury has not found that at least one of the alleged aggravating circumstances has been proven, the court shall dismiss the jury and shall impanel a new jury. The new jury shall not retry the issue of the defendant's guilt or the issue regarding any of the aggravating circumstances that the first jury found not proved by unanimous verdict. If the new jury is unable to reach a unanimous verdict, the court shall impose a sentence of life in prison without parole. (19) In any case that requires sentencing or resentencing in which the defendant has been convicted of an offense that is punishable by death and in which the trier of fact was a judge or a jury that has since been discharged, the defendant shall be sentenced or resentenced pursuant to this section by a judge or a jury that is specifically impaneled for this purpose. (20) The sentencing jury or, if the defendant is allowed to waive a sentencing hearing, the sentencing judge shall make all factual determinations required by this section or the constitution of the United States or this state to impose a death sentence. If the defendant bears the burden of proof, the issue shall be determined in the penalty phase. If the state bears the burden of proof, the issue shall be determined in the aggravation phase. (21) (a) Whenever a sentence of death is imposed upon a person pursuant to the provisions of this section, the Colorado supreme court shall review the propriety of that sentence, having regard to the nature of the offense, the character and record of the offender, the public interest, and the manner in which the sentence was imposed, including the sufficiency and accuracy of the information on which it was based. The procedures to be employed in the review shall be as provided by supreme court rule. The supreme court shall combine its review pursuant to this subsection (21) with consideration of any appeal that may be filed pursuant to part 2 of article 12 of title 16, C.R.S. (b) A sentence of death shall not be imposed pursuant to this section if the supreme court determines that the sentence was imposed under the influence of passion or prejudice or any other arbitrary circumstance or that the evidence presented does not support the finding of statutory aggravating circumstances. (22) (a) If any provisions of this section are determined by the United States supreme court or by the Colorado supreme court to render this section unconstitutional or invalid such that this section does not constitute a valid and operative death penalty statute for class 1 felonies, but severance of such provisions would, through operation of the remaining provisions of this section, maintain this section as a valid and operative death penalty statute for class 1 felonies, it is the intent of the general assembly that those remaining provisions are severable and are to have full force and effect. (b) If any death sentence is imposed upon a defendant pursuant to the provisions of this section and on appellate review, including consideration pursuant to subsection (21) of this section, the imposition of such death sentence upon such defendant is held invalid for reasons other than unconstitutionality of the death penalty or insufficiency of the evidence to support the sentence, the case shall be remanded to the trial court to set a new sentencing hearing before a newly impaneled jury or, if the defendant waived the right to jury sentencing, before the trial judge; except that, if the prosecutor informs the trial court that, in the opinion of the prosecutor, capital punishment would no longer be in the interest of justice, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment. If a death sentence imposed pursuant to this section is held invalid based on unconstitutionality of the death penalty or insufficiency of the evidence to support the sentence, said defendant shall be returned to the trial court and shall then be sentenced to life imprisonment. (23) If, on appeal, the Colorado supreme court finds one or more of the aggravating circumstances that were found to support a sentence of death to be invalid for any reason, the supreme court may determine whether the sentence of death should be affirmed on appeal by: (a) Reweighing the remaining aggravating circumstance or circumstances and all mitigating circumstances and then determining whether death is the appropriate punishment in the case; or (b) Applying harmless error analysis by considering whether, if the sentencing body had not considered the invalid aggravating circumstance, it would have nonetheless sentenced the defendant to death; or (c) If the Colorado supreme court finds the sentencing body's consideration of an aggravating circumstance was improper because the aggravating circumstance was not given a constitutionally narrow construction, determining whether, beyond a reasonable doubt, the sentencing body would have returned a verdict of death had the aggravating circumstance been properly narrowed; or (d) Employing any other constitutionally permissible method of review. (24) This section shall apply to all offenses occurring on or after February 1, 2017. SECTION 12. In Colorado Revised Statutes, 18-3-107, amend (3) as follows: 18-3-107. First degree murder of a peace officer, firefighter, or emergency medical service provider - legislative declaration. (3) A person convicted of first degree murder of a peace officer, firefighter, or emergency medical service provider shall be punished by life imprisonment without the possibility of parole for the rest of his or her natural life, unless a proceeding held to determine sentence according to the procedure set forth in section section18-1.3-1201, 18-1.3-1201.5, 18-1.3-1302, or 18-1.4-102 results in a verdict that requires imposition of the death penalty, in which event the person shall be sentenced to death. Nothing in this subsection (3) is construed as limiting the power of the governor to grant reprieves, commutations, and pardons pursuant to section 7 of article IV of the Colorado constitution. SECTION 13. In Colorado Revised Statutes, 24-4.1-302.5, amend (1) (g) as follows: 24-4.1-302.5. Rights afforded to victims. (1) In order to preserve and protect a victim's rights to justice and due process, each victim of a crime shall have the following rights: (g) The right to be present at the sentencing hearing, including any hearing conducted pursuant to section section 18-1.3-1201, 18-1.3-1201.5, or 18-1.4-102, C.R.S., for cases involving class 1 felonies, of any person convicted of a crime against such victim, and to inform the district attorney and the court, in writing, by a victim impact statement, and by an oral statement, of the harm that the victim has sustained as a result of the crime, with the determination of whether the victim makes written input or oral input, or both, to be made at the sole discretion of the victim; SECTION 14. Safety clause. The general assembly hereby finds, determines, and declares that this act is necessary for the immediate preservation of the public peace, health, and safety.