BILL ANALYSIS                                                                                                                                                                                                    



                                                                  AB 2263
                                                                  Page  1

          Date of Hearing:   April 28, 2010

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

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

          Policy Committee:                              Public  
          SafetyVote:  7-0

          Urgency:     No                   State Mandated Local Program:  
          No     Reimbursable:              

           SUMMARY  

          This bill extends, from Jan.1, 2011 to Jan. 1, 2012, the sunset  
          on provisions of law first adopted in 2007 designed to address  
          the U.S. Supreme Court's 2007 ruling in Cunningham vs.  
          California that California's determinate sentencing law (DSL)  
          violates the Sixth Amendment right to a jury trial because it  
          authorizes the court to increase a defendant's sentence by  
          finding facts not decided by a jury.   

           FISCAL EFFECT  


          Unknown moderate annual GF costs or savings, potentially in the  
          low millions of dollars, for increased or decreased state prison  
          terms to the extent more offenders receive the upper or lower  
          sentence and/or enhancement rather than the presumptive middle  
          term and/or enhancement.


          While many judges, defense attorneys and prosecutors suggest  
          this measure will not significantly alter current sentencing  
          patterns, even a minor increase in the number of offenders  
          deviating from the middle term drives significant costs or  
          savings, given the large base of offenders (some 60,000  
          offenders will receive determinate prison sentences in 2009-10).  



          Based on CDCR figures from 2006 through 2009, the number of  
          upper terms per the number of determinate sentences has in  
          creased slightly, from about 15% to about 18%, though in actual  








                                                                  AB 2263
                                                                  Page  2

          numbers, there were fewer 250 fewer upward deviations in 2009  
          than in 2006. These figures support the contention that the  
          "Cunningham fix" will not result in a major deviation from the  
          presumptive middle terms/enhancements.  


           COMMENTS  

           1)Rationale  . In 2007, in Cunningham vs. California, the U.S.  
            Supreme Court held that California's DSL violated a  
            defendant's right to a jury trial because it authorized the  
            court to increase a defendant's sentence by finding facts not  
            reflected in the jury verdict. Specifically, because a 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, the scheme  
            is constitutionally flawed. The Court suggested this problem  
            could be corrected by either providing a jury trial on the  
            sentencing issue or by giving judges discretion to impose the  
            higher term without additional findings of fact. 

            SB 40 (Romero), Statutes of 2007, corrected the constitutional  
            problem by giving judges the discretion to impose a minimum,  
            medium or maximum term, without additional findings of fact.  
            SB 150 (Wright), Statutes of 2009, applied the same solution  
            to sentence enhancements. These bills were designed as  
            temporary fixes to maintain stability in California's criminal  
            justice system while broader sentencing issues in California  
            were reviewed. The provisions of SB 40 sunset January 1, 2009,  
            but were extended to January 1, 2011 by AB 1071 (Romero),  
            Statutes of 2007. Likewise, SB 150 sunsets Jan. 1, 2011.

            This bill extends the sunsets for the SB 40 fix and the AB 150  
            fix until Jan. 1, 2012. 


           2)California's DSL uses a triad scheme  comprising a presumptive  
            middle term, a mitigated - or lower - term, and an aggravated  
            - or upper - term. The triad sentencing structure provides the  
            court three sentencing options for each crime. For example, a  
            first-degree burglary offense is punishable by a prison  
            sentence of two, four, or six years. The upper and lower terms  
            provided in statute can be given if circumstances concerning  
            the crime or offender warrant more or less time in state  
            prison. In determining whether there are circumstances  








                                                                  AB 2263
                                                                  Page  3

            warranting the upper or lower term, the court may consider the  
            record in the case, the probation officer's report, other  
            reports, including reports received pursuant to existing law  
            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. The court must state for  
            the record the facts and reasons for imposing an upper or  
            lower term. 


           


           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081