Esta ley enmienda el Código Penal de Puerto Rico (Ley Núm. 149 de 18 de junio de 2004) para modificar la clasificación de delitos graves de segundo grado, creando una modalidad simple y una severa con penas de prisión más altas para ciertos crímenes como asesinato en segundo grado, agresión sexual, secuestro agravado, secuestro de menores y robo agravado. También reclasifica el secuestro simple y el perjurio agravado a delitos de tercer grado, y el quebrantamiento de comunicaciones personales a delito grave de cuarto grado. Además, amplía la aplicación de los delitos ambientales (estropeo, envenenamiento de aguas públicas, contaminación ambiental y contaminación ambiental agravada) para incluir violaciones a regulaciones y permisos, y proteger áreas naturales.
(Approved September 16, 2004)
To amend subsection
(b) of Section 16, and Sections 107, 134, 142, 169, 170, 182, 199, 240, 241, 242, and 243 of Act No. 149 of June 18, 2004, known as the "Penal Code of the Commonwealth of Puerto Rico," to include a new modality of second degree felony, to provide the crimes to which it shall apply; to reclassify the crimes of kidnapping, aggravated perjury and breach of personal communications; to extend the application of environmental crimes to the regulations and permits granted by the agencies concerned to the natural and juridical persons and to the protected natural areas; and for other purposes.
Section 16 of the Penal Code of 2004 establishes the classification of crimes as felonies in the first to the fourth degree and as misdemeanors. The penalties established for felonies fluctuate between six (6) months and one day (fourth degree) up to ninety-nine (99) years (first degree).
The severity of the penalties established in the Penal Code of 2004, in their application, is greater than the severity established by the previous code, because the bonus system that existed under the previous statute automatically converted the time served into two thirds (2/3) of the length of the sentence. This bonus, added to other bonus programs established by the Corrections Administration, allowed for the convict to qualify for diversion programs within a shorter term. Therefore, the severity of the penalties under the previous code was only apparent, because in the practice, the convict never served the totality of the length of the sentence.
On the contrary, the new Penal Code imposes penalties without the right to receive a bonus, and therefore, the convict is bound to serve the total length of the sentence. Although the penalties established under the previous code appear to be higher, the real time served for the conviction for a similar crime under the new code shall be higher.
The penalties established in the new code are appropriate for the crimes typified therein. However, we believe it proper to establish a higher penalty for certain crimes whose commission evidences a clear disregard for the life, welfare and safety of other human beings. For such purposes, the classification of second degree felony is modified to establish a simple modality and a severe modality. In its simple modality, the commission of a second degree felony shall entail a jail term of eight (8) years and one day up to fifteen (15) years. In its severe modality, the commission of a severe second degree felony shall entail a jail term of fifteen (15) years and one day up to twenty-five (25) years. This severe modality shall apply to convictions for second degree murder, sexual aggression, aggravated kidnapping, kidnapping of minors and aggravated robbery. Likewise, and in agreement with the preceding, the crimes of kidnapping in its simple modality and aggravated perjury are hereby reclassified as third degree offenses, and the crime of breach of personal communications is reclassified from misdemeanor to fourth degree felony.
However, Sections 240, 241, 242 and 243 of the new Penal Code of the Commonwealth of Puerto Rico typify the crimes of mayhem, poisoning of public waters, environmental pollution and aggravated environmental pollution, which affect the health and well being of the community, because they cause damages to the environment.
Given the importance of natural resources regarding the sustainable development of the country, our duty to penalize and punish both natural and
juridical persons who attempt against the delicate balance of the natural systems is unavoidable, as well as the need to penalize those natural or juridical persons who abuse our system for the granting of permits or endorsements for conducting activities that result in irreparable damages to the environment.
This Legislature deems it necessary to amend the referred sections of the Penal Code to extend its scope for the protection of our natural resources and the health of our citizens.
Section 1.- Subsection
(b) of Section 16 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 16.- Classification of Crimes Crimes are classified as misdemeanors and felonies. A misdemeanor entails an individual fine of up to five thousand $(5,000)$ dollars or imprisonment for up to ninety (90) days. A felony, in all its classifications which are specified below, comprises all other crimes.
A felony entails imprisonment for more than six (6) months and, according to the corresponding penalty, is classified in four degrees, as follows:
(a) First degree felony, the penalty for which is imprisonment for a term of ninety-nine (99) years.
(b) Second degree felony, the penalty for which is imprisonment for a term fluctuating between eight (8) years and one (1) day and fifteen (15) years. Second degree murder, sexual assault, aggravated kidnapping, child kidnapping and aggravated robbery, when damage is inflicted against the victim or if it takes place in the domicile of the victim, shall be severe second degree felonies with a penalty of imprisonment of between fifteen (15) years and one day and twenty-five (25) years.
(c) Third degree felony, the penalty for which is imprisonment fluctuating
between three (3) years and one (1) day and eight (8) years.
(d) Fourth degree felony, the penalty for which is imprisonment fluctuating between six (6) months and one day and three (3) years.
However, other types of penalty besides imprisonment may be imposed for felonies and misdemeanors.
The felonies typified in special laws maintain the classification of felony and the corresponding penalty if they entail a penalty of imprisonment for more than six (6) months or a fine of more than five thousand $(5,000)$ dollars, unless otherwise provided by law.
Misdemeanors typified in special laws maintain the classification of misdemeanor and the corresponding penalty if they entail a penalty that does not exceed six (6) months or a fine that does not exceed five thousand $(5,000)$ dollars, or both penalties."
Section 2.- Section 107 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 107.- Penalties for Murder Any person convicted of murder in the first degree shall be penalized as established for a first degree felony.
Any person convicted of murder in the second degree shall be penalized as established for a severe second degree felony."
Section 3.- Section 134 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 134.- Kidnapping of Minors Any person who, by means of force, violence, intimidation, fraud or deceit abducts a minor for the purpose of detaining and hiding said minor from the parents, the tutor or from any other person in charge of said minor shall incur a severe second degree felony.
A penalty in the upper half of the corresponding range shall be imposed when the conduct prohibited in the previous paragraph is carried out in:
(a) a public or private hospital institution;
(b) a public or private elementary, middle or high school;
(c) an occupied building or its premises;
(d) a child care center; or
(e) a park, recreational area or shopping mall."
Section 4.- Section 142 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 142.- Sexual Assault Any person who performs sexual penetration, whether vaginal, anal, oralgenital, digital or instrumental under any of the following circumstances shall incur a severe second degree felony:
(a) If the victim has not yet reached the age of sixteen (16) at the time of the event.
(b) If due to mental disability or illness, whether temporary or permanent, the victim is unable to understand the nature of the act at the time of its commission.
(c) If the victim has been compelled into the act by means of physical force, violence, intimidation or the threat of serious and immediate bodily harm.
(d) If the victim's capability to consent has been annulled or diminished substantially without his/her knowledge or without his/her consent by means of hypnosis, narcotics, depressants or stimulants, or similar means or substances.
(e) When at the time of the commission of the act the victim is not conscious of its nature and this circumstance is known to the person
accused.
(f) If the victim submits to the act by means of deception, trickery, simulation or cover up with respect to the identity of the person accused.
(g) If the victim is forced or induced by means of abuse or physical or psychological violence into participating or becoming involved in unwanted sexual relations with third parties.
(h) If the accused person is a relative of the victim, by ascendancy or descendancy, or consanguinity, adoption or affinity, or collateral by consanguinity or adoption up to the third degree.
(i) When the accused person takes advantage of the trust deposited in him/her by the victim because there is a relationship of superiority because the victim is under his/her custody, guardianship, or primary, secondary or special education, medical or psychotherapeutic treatment, or any type of counseling, or because there is a relationship with the victim as the leader of his/her religious belief.
If the conduct typified in subsection
(a) is committed by a minor who has not yet reached the age of eighteen (18), the offender shall incur a third degree felony if prosecuted as an adult."
Section 5.- Section 169 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 169.- Kidnapping Any person who by means of force, violence, intimidation, fraud or deceit abducts or detains and hides another person depriving him/her of his/her freedom shall incur a second degree felony.
When the victim is abducted from the location he/she is at and is removed from it, the removal of the victim must be for a substantial time or distance and not
merely incidental to the commission of another offense." Section 6.- Section 170 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 170.- Aggravated Kidnapping Any person who commits the offense of kidnapping when any of the following circumstances exists shall incur a severe second degree felony:
(a) When the offense is committed against a person who has not yet reached the age of eighteen (18), is disabled and cannot take care of him/herself, or who is mentally ill.
(b) When the offense is committed against the Governor of Puerto Rico, a legislator or Cabinet Secretary or head of an agency or public corporation, judge, special independent prosecutor or a prosecuting attorney of the Department of Justice of Puerto Rico, whether appointed by the Governor of Puerto Rico or designated as such by the Secretary of Justice.
(c) When the offense is committed for the purpose of demanding monetary compensation or if any unlawful act or an act against the will of the kidnapped person is carried out, or to demand from the Government the release of any inmate that is serving a sentence or the release of a person arrested or charged with respect to the commission of any offense.
(d) When the kidnapping is initiated outside the territorial limits of the Commonwealth of Puerto Rico and the person is either brought or sent to Puerto Rico."
Section 7.- Section 182 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 182.- Breach of Personal Communications
Any person who without authorization and for the purpose of finding out or allowing any other person to find out, or who acquires documents, letters, e-mail messages or any other documents or effects belonging to another, or intercepts another person's telecommunications or uses technical devices or mechanisms to listen to, transmit, record or reproduce any text, sound, image or any other communication signal, or alters the contents thereof, shall incur a serious fourth degree felony."
Section 8.- Section 199 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 199.- Aggravated Robbery When in order to commit the robbery, the person uses a minor who has not yet reached the age of eighteen (18), or when the item object of the robbery is a motor vehicle, he/she shall incur a second degree felony.
When in the course of the robbery physical damage is inflicted upon the victim, or if the robbery takes place in an occupied residential building where the victim is, the offender shall incur a severe second degree felony.
The court may also impose the penalty of restitution." Section 9.- Section 240 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 240.- Mayhem Any person who endangers the life, health, bodily integrity or safety of one or several persons, or who causes environmental damages by provoking an explosion, flood or land shift by means of causing the demolition of real property, or by using toxic or choking gas, nuclear energy, ionizing elements or radioactive material, microorganisms or any other toxic or hazardous substance shall incur a second degree felony.
If the acts enumerated under this offense are performed due to negligence, the
offender shall incur a third degree felony. For the purposes of this Section, the term toxic or hazardous shall include substances which are prejudicial to the health or which have destructive capabilities.
The court may also impose the penalty of restitution." Section 10.- Section 241 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 241.- Poisoning of Public Waters Any person who endangers the life or health of one or several persons by poisoning, polluting or dumping toxic or hazardous substances into wells, reservoirs, bodies of water, pipelines or runoff streams for human use and consumption shall incur a second degree felony.
If the acts enumerated under this offense are performed due to negligence, the offender shall incur a third degree felony.
For purposes of this Section, the term toxic or hazardous shall include substances which are prejudicial to the health or which have destructive capabilities.
The court may also impose the penalty of restitution." Section 11.- Section 242 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 242.- Environmental Pollution Any person who discharges or provokes, directly or indirectly, emissions, radiation or dumping of any sort on the ground, into the atmosphere or into ground, underground or maritime water bodies breaching laws, regulations or the special conditions of applicable permits and which seriously endangers the health of persons, the biological balance of ecological systems or the environment shall incur a fourth degree felony.
The court may also impose the penalty of restitution." Section 12.- Section 243 of Act No. 149 of June 18, 2004, is hereby amended to read as follows: "Section 243.- Aggravated Environmental Pollution If the environmental pollution offense typified in Section 242 is committed by a person who does not have the corresponding permit, endorsement, certification, franchise or concession, or is committed clandestinely or by infringing expressly stated provisions issued by the competent authorities for correcting or suspending any act in violation of the law, or if he/she submits false information or omits information required for obtaining the corresponding permit, endorsement, certification, franchise or concession, or hinders or obstructs an inspection performed by the competent authorities, said person shall incur a third degree felony.
The court may also suspend the license, permit or authorization and impose the penalty of restitution."
Section 13.- Effectiveness This Act shall take effect once the New Penal Code of the Commonwealth of Puerto Rico, Act No. 149 of June 18, 2004, is in effect.
I hereby certify to the Secretary of State that the following Act No. 338 (S.B. 2946) of the $7^{ ext {th }}$ Session of the $14^{ ext {th }}$ Legislature of Puerto Rico:
AN ACT to amend subsection
(b) of Section 16, and Sections 107, 134, 142, 169, 170, 182, 199, 240, 241, 242, and 243 of Act No. 149 of June 18, 2004, known as the "Penal Code of the Commonwealth of Puerto Rico," to include a new modality of second degree felony, to provide the crimes to which it shall apply; to reclassify the crimes of kidnapping, aggravated perjury and breach of personal communications; to extend the application of environmental crimes to the regulations and permits granted by the agencies concerned to the natural and juridical persons and to the protected natural areas; and for other purposes, has been translated from Spanish to English and that the English version is correct.
In San Juan, Puerto Rico, today $31^{ ext {st }}$ of July of 2007.
Francisco J. Domenech Director