BILL ANALYSIS                                                                                                                                                                                                    

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          AB 2263 (Yamada)
          As Amended  March 22, 2010
          2/3 vote 

           PUBLIC SAFETY       7-0         APPROPRIATIONS      17-0        
          |Ayes:|Ammiano, Hagman, Beall,   |Ayes:|Fuentes, Conway, Ammiano, |
          |     |Gilmore, Hill,            |     |                          |
          |     |Portantino, Skinner       |     |Bradford, Charles         |
          |     |                          |     |Calderon, Coto,           |
          |     |                          |     |Davis, Monning, Ruskin,   |
          |     |                          |     |Harkey,                   |
          |     |                          |     |Miller, Nielson, Norby,   |
          |     |                          |     |Skinner,                  |
          |     |                          |     |                          |
           SUMMARY  :  Extends to January 1, 2012 provisions of law that  
          state 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.  

          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  


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            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  
            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.  

          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  


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            is suspended.  

           FISCAL EFFECT  :  According to the Assembly Appropriations  
          Committee analysis, unknown moderate annual General Fund 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 the California Department of Corrections and  
          Rehabilitation 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  
          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  :   According to the author, "AB 2263 extends the sunset  
          date for current statutes authorizing courts to impose the  
          maximum term on sentences and sentence 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." 

          Please see the policy committee for a full discussion of this  

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


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