BILL ANALYSIS                                                                                                                                                                                                    

                                                                  AB 2263
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          Date of Hearing:   April 13, 2010
          Counsel:                Kimberly A. Horiuchi

                                 Tom Ammiano, Chair

                    AB 2263 (Yamada) - As Amended:  March 22, 2010

           SUMMARY  :   Extends to January 1, 2012 provisions of law that  
          provide that the court shall, in its discretion, impose the term  
          or enhancement that best serves the interest of justice, as  
          required by SB 40 (Romero), Chapter 40, Statutes of 2007, SB 150  
          (Wright), Chapter 171, Statutes of 2009 and Cunningham vs.  
          California (2007) 549 US 270 and makes other conforming changes.  

           EXISTING LAW  :

          1)States the Legislature finds and declares that the purpose of  
            imprisonment for crime is punishment.  This purpose is best  
            served by terms proportionate to the seriousness of the  
            offense with provision for uniformity in the sentences of  
            offenders committing the same offense under similar  
            circumstances.  The Legislature further finds and declares  
            that the elimination of disparity and the provision of  
            uniformity of sentences can best be achieved by determinate  
            sentences fixed by statute in proportion to the seriousness of  
            the offense as determined by the Legislature to be imposed by  
            the court with specified discretion.  [Penal Code Section  

          2)Provides that in any case in which the punishment prescribed  
            by statute for a person convicted of a public offense is a  
            term of imprisonment in the state prison of any specification  
            of three time periods, the court shall sentence the defendant  
            to one of the terms of imprisonment specified unless the  
            convicted person is given any other disposition provided by  
            law, including a fine, jail, probation, or the suspension of  
            imposition or execution of sentence or is sentenced pursuant  
            to existing law, or because he or she had committed his or her  
            crime prior to July 1, 1977.  In sentencing the convicted  
            person, the court shall apply the sentencing rules of the  
            Judicial Council.  The court, unless it determines that there  


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            are circumstances in mitigation of the punishment prescribed,  
            shall also impose any other term that it is required by law to  
            impose as an additional term.  Nothing in this article shall  
            affect any provision of law that imposes the death penalty,  
            that authorizes or restricts the granting of probation or  
            suspending the execution or imposition of sentence, or  
            expressly provides for imprisonment in the state prison for  
            life.  In any case in which the amount of pre-imprisonment  
            credit under existing law or any other provision of law is  
            equal to or exceeds any sentence imposed pursuant to this  
            chapter, the entire sentence shall be deemed to have been  
            served and the defendant shall not be actually delivered to  
            the custody of the secretary.  [Penal Code Section  

          3)Requires that when a judgment of imprisonment is to be imposed  
            and the statute specifies three possible terms, the court  
            shall order imposition of the middle term unless there are  
            circumstances in aggravation or mitigation of the crime.  At  
            least four days prior to the time set for imposition of  
            judgment, either party or the victim, or the family of the  
            victim if the victim is deceased, may submit a statement in  
            aggravation or mitigation to dispute facts in the record or  
            the probation officer's report, or to present additional  
            facts.  In determining whether there are circumstances that  
            justify imposition of the upper or lower term, the court may  
            consider the record in the case, the probation officer's  
            report, and statements in aggravation or mitigation submitted  
            by the prosecution, the defendant, or the victim, or the  
            family of the victim if the victim is deceased, and any  
            further evidence introduced at the sentencing hearing.  The  
            court shall set forth on the record the facts and reasons for  
            imposing the upper or lower term.  The court may not impose an  
            upper term by using the fact of any enhancement upon which  
            sentence is imposed under any provision of law.  A term of  
            imprisonment shall not be specified if imposition of sentence  
            is suspended.  [Penal Code Section 1170(b).]

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author, "AB 2263 extends  
            the sunset date for current statutes authorizing courts to  
            impose the maximum term on sentences and sentence  


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            enhancements.  This bill is necessary because courts need this  
            authority for sentencing procedures until a more permanent and  
            constitutional fix is established.  The statutes that allow a  
            court to impose the upper term in a defendant's base sentence  
            or for sentence enhancements that include a sentencing range  
            are set to sunset on January 1, 2011.  Unless legislation is  
            enacted to extend the sunset of these statutes, California's  
            sentencing laws will be deemed unconstitutional as found by  
            the United States Supreme Court in Cunningham v. California." 

           2)Cunningham vs. California and the Sixth Amendment Right to a  
            Jury Trial  :  Cunningham held California's Determined  
            Sentencing Law (DSL) violated the defendant's Sixth Amendment  
            right to a jury trial because the DSL authorized the court to  
            increase the defendant's sentence by finding facts not  
            reflected in the jury verdict.  Specifically, the trial judge  
            could find factors in aggravation beyond a preponderance of  
            evidence to increase the offender's sentence from the  
            presumptive middle term to the upper term and, as such, is  
            constitutionally flawed.  The Court stated, "Because the DSL  
            authorizes the judge, not the jury, to find the facts  
            permitting an upper term sentence, the sentence cannot  
            withstand measurement against our Sixth Amendment precedent."   
            (Cunningham at 21.)  Cunningham overruled the California State  
            Supreme Court in People vs. Black (2005) 35 Cal. 4th 1238.   
            Black held California's DSL constitutional.  The California  
            Supreme Court stated:

          "In operation and effect, the provisions of the California DSL  
            simply authorize a sentencing court to engage in the type of  
            fact-finding that traditionally has been incident to the  
            judge's selection of an appropriate sentence within a  
            statutorily prescribed sentencing range.  Therefore, the upper  
            term is the 'statutory maximum' and a trial court's imposition  
            of an upper term sentence does not violate a defendant's right  
            to a jury trial under the principles set forth in [existing  
            law]."  (Black at 1254.)

          The United States Supreme Court relied on several earlier  
            decisions to justify the holding in this case.  In 2000, the  
            Court ruled in Apprendi vs. New Jersey that the Federal  
            Constitution's jury-trial guarantee proscribes a sentencing  
            scheme that allows a judge to impose a sentence above the  
            statutory maximum based on a fact, other than a prior  
            conviction, not found by a jury or admitted by the defendant.   


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            [Apprendi vs. New Jersey (2000) 530 US 466, 490; Cunningham at  
            1.]  The United States Supreme Court further clarified this  
            "bright-line rule" in Blakely vs. Washington, "The relevant  
            statutory maximum is not the maximum sentence a judge may  
            impose after finding additional facts, but the maximum he may  
            impose without any additional findings."  [Blakely vs.  
            Washington (2004) 542 U.S. 296, 303.]  In 2005, the United  
            States Supreme Court struck down portions of the Federal  
            Sentencing Guidelines (FSG) in Booker vs. United States (2005)  
            543 U.S. 220.  However, the Court saved the FSG by excising  
            the part of the guidelines it found unconstitutional, namely  
            the provision making the guidelines binding on district  
            judges.  The Court reasoned:

          "If the [FSG] as currently written could be read as merely  
            advisory provisions that recommended, rather than required,  
            the selection of particular sentences in response to differing  
            sets of facts, their use would not implicate the Sixth  
            Amendment.  We have never doubted the authority of a judge to  
            exercise broad discretion in imposing a sentence within a  
            statutory range.  Indeed, everyone agrees that the  
            constitutional issues presented by [this case] would have been  
            avoided entirely if Congress had omitted from the [FSG] the  
            provisions that make the Guidelines binding on district  
            judges.  . . .  For when a trial judge exercises his  
            discretion to select a specific sentence within a defined  
            range, the defendant has no right to a jury determination of  
            the facts that the judge deems relevant."

           3)SB 40 (Romero), Chapter 3, Statutes of 2007 Amended the DSL  :   
            While the Supreme Court in its Cunningham decision found that  
            California's DSL violates the Sixth Amendment, the Court also  
            provided clear direction as to what steps California's  
            Legislature could take to address the DSL's constitutional  

          "As to the adjustment of California's sentencing system in light  
            of our decision, the ball . . . lies in [California's] court.   
            We note that several States have modified their systems in the  
            wake of Apprendi and Blakely to retain determinate sentencing.  
             They have done so by calling upon the jury - either at trial  
            or in a separate sentencing proceeding - to find any fact  
            necessary to the imposition of an elevated sentence.  As  
            earlier noted, California already employs juries in this  
            manner to determine statutory sentencing enhancements.  Other  


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            States have chosen to permit judges genuinely to exercise  
            broad discretion . . . within a statutory range, which,  
            everyone agrees, encounters no Sixth Amendment shoal.   
            California may follow the paths taken by its sister States or  
            otherwise alter its system, so long as the State observes  
            Sixth Amendment limitations declared in this Court's  
            decisions."  [Cunningham v. California, 2007 U.S. LEXIS 1324  
            (U.S. 2007), citations and footnotes omitted.]

          Because, as the Court stated in Blakely, "The relevant statutory  
            maximum, is not the maximum sentence a judge may impose after  
            finding additional facts, but the maximum he may impose  
            without any additional findings[,]" and because prior to SB 40  
            under California's DSL a judge could only impose the upper  
            term after making additional findings of fact, the Court in  
            Cunningham found that absent any amendment along the lines  
            stated above the statutory maximum a judge would be authorized  
            to impose in California is the middle term.  [Cunningham v.  
            California, 2007 U.S. LEXIS 1324 (U.S. 2007).]

          SB 40 amended California's DSL to give judges the discretion to  
            impose the lower, middle, or upper term without the need for  
            additional fact finding.  Similarly, SB 150 (Wright), Chapter  
            171, Statutes of 2009 applied the SB 40 "fix" to enhancements.  
             In addition, SB 40 included legislative intent language  
            stating that its purpose was to address Cunningham and to  
            stabilize the criminal justice system while sentencing and  
            correctional policies in California are being reviewed.

           4)Argument in Support  :  According to the  Los Angeles County  
            District Attorneys Office  , "SB 40 (Romero) of 2007 corrected a  
            constitutional flaw in California's sentencing law.  SB 150  
            (Wright) of 2009 extended that constitutional fix to cover  
            sentence enhancements.  In 2007, the United States Supreme  
            Court held that California's determinate sentencing law  
            violated a defendant's right to a jury trial because a judge  
            was required to make factual findings in order to justify  
            imposing the maximum term of a sentencing triad.  [Cunningham  
            vs. California (2007) 549 U.S. 270.]  The Supreme Court  
            suggested that this problem could be corrected by either  
            providing for a jury trial on the sentencing issue or by  
            giving judges discretion to impose a higher term without  
            additional findings of fact.  

          "SB 40 (Romero) of 2007 corrected the constitutional problem by  


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            giving judges the discretion to impose a minimum, medium or  
            maximum term, without additional findings of fact.  SB 40's  
            approach was embraced by the California Supreme Court in  
             People vs. Sandoval  (2007) 41 Cal.4th 843-852.  At the time  
            Senate Bill 40 passed, it was contemplated that the  
            Legislature would study California's sentencing law and either  
            make the SB 40 approach permanent or develop another approach  
            that also meets constitutional requirements as expressed by  
            the United States Supreme Court.  AB 2263 extends the sunset  
            on the SB 40 and SB 150 sentencing laws to January 1, 2012, in  
            order to allow the Legislature to study this issue during the  
            upcoming Interim Study recess.  Without AB 2263, California  
            determinate sentencing law would return to a structure that  
            the U.S. Supreme Court has held to be unconstitutional."

           5)Related Legislation  :  SB 150 (Wright), Chapter 171, Statutes  
            of 2009, provided that where a court imposes a sentence  
            enhancement with a lower, middle or upper term, as specified,  
            the choice of term will be within the court's discretion; and  
            in imposing one of those three sentences, the court must state  
            its reasons for its sentencing choice on the record, as  
            specified in SB 40 (Romero), Chapter 3, Statutes of 2007 and  
            extended those provisions to January 1, 2011. 

           6)Prior Legislation  :  

             a)   SB 1701 (Romero), Chapter 416, Statutes of 2007,  
               extended the sunset date from January 1, 2009 to January 1,  
               2011 for which a court sentencing a defendant in the wake  
               of Cunningham vs. California and the enactment of SB 40  
               (Romero), Chapter 3, Statutes of 2007, may impose the  
               lower, middle or upper term of imprisonment, as specified.

             b)   SB 40 (Romero), Chapter 3, Statutes of 2007 amended  
               California's DSL to state that where a court may impose a  
               lower, middle or upper term in sentencing a criminal  
               defendant, the choice of appropriate term shall be left to  
               the discretion of the court to sentence in the best  
               interest of justice.


          California District Attorneys Association


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          Los Angeles County District Attorneys Association


          Analysis Prepared by  :    Kimberly Horiuchi / PUB. S. / (916)