BILL ANALYSIS                                                                                                                                                                                                    







                      SENATE COMMITTEE ON PUBLIC SAFETY
                             Senator Mark Leno, Chair                A
                             2009-2010 Regular Session               B

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          AB 2263 (Yamada)                                           3
          As Amended March 22, 2010 
          Hearing date:  June 22, 2010
          Penal Code
          SM:dl

                              SENTENCING: CHOICE OF TERM  

                                       HISTORY

          Source:  Los Angeles County District Attorney's Office

          Prior Legislation: SB 150 (Wright) - Chapter 171, Statutes of  
          2009
                       SB 1701 (Romero) - Chapter 416, Statutes of 2008
                       SB 1342 (Cogdill) - died in Senate Public Safety;  
          2008
                       SB 40 (Romero) - Chapter 3, Statutes of 2007

          Support: California District Attorneys Association

          Opposition:California Coalition for Women Prisoners

          Assembly Floor Vote:  Ayes  73 - Noes  1



                                         KEY ISSUE
           
          SHOULD THE PROVISIONS OF SB 150 AND SB 1701 BE EXTENDED TO JANUARY  
          1, 2012, ALLOWING COURTS TO SELECT A LOWER, MIDDLE OR UPPER TERM FOR  
          BOTH BASE TERM SENTENCES AND ENHANCEMENTS BY EXERCISE OF THE COURT'S  
          DISCRETION?




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                                                           AB 2263 (Yamada)
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                                       PURPOSE

          The purpose of this bill is to extend the sunset provisions of  
          SB 1701 and SB 150 to January 1, 2012.

           Existing law  provides that when a judgment of imprisonment is to  
          be imposed and the statute specifies three possible terms, the  
          choice of the appropriate term shall rest within the sound  
          discretion of the court.  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.  In determining the  
          appropriate term, the court may consider the record in the case,  
          the probation officer's report, other reports including reports  
          received pursuant to Section 1203.03 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 select the term which, in  
          the court's discretion, best serves the interests of justice.   
          The court shall set forth on the record the reasons for imposing  
          the term selected and 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.  

          This section, to the extent it was modified by SB 40 (Romero) to  
          address Cunningham v. California in 2007, sunsets on January 1,  
          2009.  (See Comment 2, infra.)  (Penal Code  1170(b).)

           Existing law  provides that the Judicial Council shall seek to  
          promote uniformity in sentencing under Section 1170, by:

                 the adoption of rules providing criteria for the  
               consideration of the trial judge at the time of sentencing  
               regarding the court's decision to:

                  o         grant or deny probation; 




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                  o         impose the lower, middle, or upper prison  
                    term; 
                  o         impose concurrent or consecutive sentences;  
                    and
                  o         determine whether or not to impose an  
                    enhancement where that determination is permitted by  
                    law;

                 the adoption of rules standardizing the minimum content  
               and the sequential presentation of material in probation  
               officer reports submitted to the court.

          This section, to the extent it was modified by SB 40 (Romero) to  
          address Cunningham v. California in 2007, sunsets on January 1,  
          2009.  (See Comment 2, infra.)  (Penal Code  1170.3.)

           Existing law  , in the form of the California Rules of Court,  
          provides that: 

                 When a sentence of imprisonment is imposed, or the  
               execution of a sentence of imprisonment is ordered  
               suspended, the sentencing judge must select the upper,  
               middle, or lower term on each count for which the defendant  
               has been convicted, as provided in section 1170(b) and  
               these rules. 

                 In exercising his or her discretion in selecting one of  
               the three authorized prison terms referred to in section  
               1170(b), the sentencing judge may consider circumstances in  
               aggravation or mitigation, and any other factor reasonably  
               related to the sentencing decision.  The relevant  
               circumstances may be obtained from the case record, the  
               probation officer's report, other reports and statements  
               properly received, statements in aggravation or mitigation,  
               and any evidence introduced at the sentencing hearing.

                 To comply with section 1170(b), a fact charged and found  
               as an enhancement may be used as a reason for imposing the  
               upper term only if the court has discretion to strike the  
               punishment for the enhancement and does so.  The use of a  




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               fact of an enhancement to impose the upper term of  
               imprisonment is an adequate reason for striking the  
               additional term of imprisonment, regardless of the effect  
               on the total term. 
          
                 A fact that is an element of the crime upon which  
               punishment is being imposed may not be used to impose a  
               greater term. 

                 The reasons for selecting one of the three authorized  
               prison terms referred to in section 1170(b) must be stated  
               orally on the record. 

           Existing case law  establishes that, contrary to the holding of  
          the California Supreme Court in People v. Black, 35 Cal.4th 1238  
          (2005), California's determinate sentencing law prior to the  
          enactment of SB 40 (Romero) (2007) violated the right of the  
          accused to a trial by jury, as guaranteed by the Sixth Amendment  
          to the United States Constitution.  (Cunningham v. California,  
          2007 U.S. LEXIS 1324 (U.S. 2007).)


           Existing case law  established that to adjust California's  
          sentencing law to make it conform to Constitutional  
          requirements, California may either require juries "to find any  
          fact necessary to the imposition of an elevated sentence" or  
          "permit judges genuinely 'to exercise broad discretion . . .  
          within a statutory range.'"  (Cunningham v. California, 2007  
          U.S. LEXIS 1324 (U.S. 2007).)

           Existing law  amended Penal Code sections 1170 and 1170.3, in  
          response to the Cunningham decision, to make the choice of  
          lower, middle, or upper prison term one within the sound  
          discretion of the court.  (Senate Bill 40 (Romero) - Chapter 3,  
          Stats. of 2007.)  

           Existing law  includes the following legislative findings that  
          were adopted as part of SB 40 (2007): 

               It is the intent of the Legislature in enacting this  




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               provision to respond to the decision of the United  
               States Supreme Court in Cunningham v. California, No.  
               05-6551, 2007 U.S. Lexis 1324.  It is the further  
               intent of the Legislature to maintain stability in  
               California's criminal justice system while the  
               criminal justice and sentencing structures in  
               California sentencing are being reviewed.

           Existing law  amending Penal Code sections 1170 and 1170.3 (SB  
          40) also included a "sunset" provision, declaring that it's  
          provisions would remain in effect only until January 1, 2009,  
          unless a later enacted statute, that is enacted before that  
          date, deletes or extends that date.  SB 1701 (Romero) Chapter  
          416, Statutes of 2008, extended that sunset date to January 1,  
          2011.

           Existing law  provides that certain sentencing enhancements carry  
          an additional penalty of a lower, middle, or upper term of  
          years.  These sections were amended in response to the  
          Cunningham decision, to make the choice of lower, middle, or  
          upper prison term one within the sound discretion of the court.   
          (SB 150 (Wright), Chap. 171, Stats. of 2009)  (Penal Code   
          186.22, 186.33, 12021.5, 12022.2, 12022.3, 12022.4.)  SB 150  
          also included a "sunset" provision, declaring that it's  
          provisions would remain in effect only until January 1, 2011,  
          unless a later enacted statute, that is enacted before that  
          date, deletes or extends that date.  

           This bill  would extend the sunset dates enacted in SB 1701 and  
          SB 150 to January 1, 2012.
          
          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          The severe prison overcrowding problem California has  
          experienced for the last several years has not been solved.  In  
          December of 2006 plaintiffs in two federal lawsuits against the  
          Department of Corrections and Rehabilitation sought a  
          court-ordered limit on the prison population pursuant to the  
          federal Prison Litigation Reform Act.  On January 12, 2010, a  




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          federal three-judge panel issued an order requiring the state to  
          reduce its inmate population to 137.5 percent of design capacity  
          -- a reduction of roughly 40,000 inmates -- within two years.   
          In a prior, related 184-page Opinion and Order dated August 4,  
          2009, that court stated in part:

               "California's correctional system is in a tailspin,"  
               the state's independent oversight agency has reported.  
               . . .  (Jan. 2007 Little Hoover Commission Report,  
               "Solving California's Corrections Crisis: Time Is  
               Running Out").  Tough-on-crime politics have increased  
               the population of California's prisons dramatically  
               while making necessary reforms impossible. . . .  As a  
               result, the state's prisons have become places "of  
               extreme peril to the safety of persons" they house, .  
               . .  (Governor Schwarzenegger's Oct. 4, 2006 Prison  
               Overcrowding State of Emergency Declaration), while  
               contributing little to the safety of California's  
               residents, . . . .   California "spends more on  
               corrections than most countries in the world," but the  
               state "reaps fewer public safety benefits." . . .  .   
               Although California's existing prison system serves  
               neither the public nor the inmates well, the state has  
               for years been unable or unwilling to implement the  
               reforms necessary to reverse its continuing  
               deterioration.  (Some citations omitted.)

               . . .

               The massive 750% increase in the California prison  
               population since the mid-1970s is the result of  
               political decisions made over three decades, including  
               the shift to inflexible determinate sentencing and the  
               passage of harsh mandatory minimum and three-strikes  
               laws, as well as the state's counterproductive parole  
               system.  Unfortunately, as California's prison  
               population has grown, California's political  
               decision-makers have failed to provide the resources  
               and facilities required to meet the additional need  
               for space and for other necessities of prison  




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               existence.  Likewise, although state-appointed experts  
               have repeatedly provided numerous methods by which the  
               state could safely reduce its prison population, their  
               recommendations have been ignored, underfunded, or  
               postponed indefinitely.  The convergence of  
               tough-on-crime policies and an unwillingness to expend  
               the necessary funds to support the population growth  
               has brought California's prisons to the breaking  
               point.  The state of emergency declared by Governor  
               Schwarzenegger almost three years ago continues to  
               this day, California's prisons remain severely  
               overcrowded, and inmates in the California prison  
               system continue to languish without constitutionally  
               adequate medical and mental health care.<1>

          The court stayed implementation of its January 12, 2010 ruling  
          pending the state's appeal of the decision to the U.S. Supreme  
          Court.  On Monday, June 14, 2010, the U.S. Supreme Court agreed  
          to hear the state's appeal in this case.   

           This bill  does not appear to aggravate the prison overcrowding  
          crisis described above.


                                      COMMENTS


          1.  Need for This Bill  

          According to the author:

               The statutes that allow a court to impose the upper  
               term in a defendant's base sentence or for sentence  
               ----------------------
          <1>   Three Judge Court Opinion and Order, Coleman v.  
          Schwarzenegger, Plata v. Schwarzenegger, in the United States  
          District Courts for the Eastern District of California and the  
          Northern District of California United States District Court  
          composed of three judges pursuant to Section 2284, Title 28  
          United States Code (August 4, 2009).




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               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.  Background: The Holding in Cunningham v. California:  
            California's Determinate Sentencing Law was Unconstitutional  

          Under California's determinate sentencing law (DSL), specified  
          crimes may be punished by one of three prison terms, referred to  
          as the lower, middle, or upper term.  Prior to SB 40, Section  
          1170 stated 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."   
          (Penal Code  1170(b).)  Having established this system of  
          sentencing "triads," the Legislature delegated to the Judicial  
          Council the duty to adopt rules providing criteria to guide the  
          trial judge at the time of sentencing regarding the court's  
          decision to impose the lower, middle, or upper prison term.   
          (Penal Code  1170.3.)  According to the rules of court  
          established by the Judicial Council prior to SB 40, in  
          sentencing a defendant under the DSL, "[t]he middle term must be  
          selected unless imposition of the upper or lower term is  
          justified by circumstances in aggravation or mitigation."  (Cal.  
          Rules of Court, Rule 4.420(a).)

          Prior to SB 40, the Rules of Court, Rule 4.420(b) further  
          required that, "[c]ircumstances in aggravation and mitigation  
          must be established by a preponderance of the evidence.   
          Selection of the upper term is justified only if, after a  
          consideration of all the relevant facts, the circumstances in  
          aggravation outweigh the circumstances in mitigation.  The  
          relevant facts are included in the case record, the probation  
          officer's report, other reports and statements properly  
          received, statements in aggravation or mitigation, and any  




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          further evidence introduced at the sentencing hearing.   
          Selection of the lower term is justified only if, considering  
          the same facts, the circumstances in mitigation outweigh the  
          circumstances in aggravation."  

          In 2000, in the landmark ruling in Apprendi v. New Jersey, the  
          U.S. Supreme Court held 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."  (Cunningham v. California, 2007  
          U.S. LEXIS 1324, 11-12 (U.S. 2007), citing Apprendi v. New  
          Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);  
          Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d  
          556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S. Ct.  
          2531, 159 L. Ed. 2d 403 (2004); United States v. Booker, 543  
          U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).  The Supreme  
          Court clarified this principle in Blakely v. Washington as  
          follows:  "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, supra 542 U.S., at 303-304, 124 S. Ct. 2531, 159 L. Ed.  
          2d 403 (emphasis in original).  

          In finding that California's DSL, prior to SB 40, violated the  
          right to a trial by jury, as defined under Apprendi, the Supreme  
          Court stated, "California's DSL, and the rules governing its  
          application, direct the sentencing court to start with the  
          middle term, and to move from that term only when the court  
          itself finds and places on the record facts - whether related to  
          the offense or the offender - beyond the elements of the charged  
          offense."  (Cunningham v. California, 2007 U.S. LEXIS 1324 (U.S.  
          2007).)  Because, prior to SB 40, California's DSL required the  
          judge, in order to impose the upper term, to find facts that  
          were not elements of the offense found true by the jury, and  
          because the court could find those facts by a preponderance of  
          the evidence as opposed to the higher standard of beyond a  
          reasonable doubt, the DSL did exactly what was forbidden under  
          Apprendi, namely, it "allows a judge to impose a sentence above  
          the statutory maximum based on a fact, other than a prior  




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          conviction, not found by a jury or admitted by the defendant."   
          (Apprendi, supra, 530 U.S. 466.)  "This Court has repeatedly  
          held that, under the Sixth Amendment, any fact that exposes a  
          defendant to a greater potential sentence must be found by a  
          jury, not a judge, and established beyond a reasonable doubt,  
          not merely by a preponderance of the evidence."  (Cunningham v.  
          California, 2007 U.S. LEXIS 1324 (U.S. 2007).)

          In sum, the Court held: "Because circumstances in aggravation  
          are found by the judge, not the jury, and need only be  
          established by a preponderance of the evidence, not beyond a  
          reasonable doubt, . . . the DSL violates Apprendi's bright-line  
          rule: Except for a prior conviction, 'any fact that increases  
          the penalty for a crime beyond the prescribed statutory maximum  
          must be submitted to a jury, and proved beyond a reasonable  
          doubt.'"  (Cunningham v. California, 2007 U.S. LEXIS 1324 (U.S.  
          2007), citation omitted.)

          3.  SB 40 (2007) Amended California's DSL to Satisfy  
          Constitutional Requirements  

          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  
          infirmities.

               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 States  
               have chosen to permit judges genuinely to  




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               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.  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.  




           











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          4.  Sentence Enhancements Containing Three Possible Terms  
           
           Most sentence enhancements provide for a specific term of years.  
           (See e.g., Penal Code  667(a) - 5 years for each prior serious  
          felony conviction.)  Some sentence enhancements, however, like  
          the base terms, provide that the court must select one of three  
          possible terms, a lower, middle or upper term.  (See e.g. Penal  
          Code  12022.5(a), imposing a sentence enhancement of 3, 4 or 10  
          years for personally using a firearm in the commission of a  
          felony.)

          Section 1170.1(b) of the Penal Code instructs sentencing judges  
          how to impose sentence enhancements where there is a choice of  
          terms, "If an enhancement is punishable by one of three terms,  
          the court shall impose the middle term unless there are  
          circumstances in aggravation or mitigation, and state the  
          reasons for its sentencing choice, other than the middle term,  
          on the record at the time of sentencing."  Although in  
          Cunningham, the Court found that sentence enhancements, per se,  
          in California, did not violate the right to have a jury decide  
          all facts that could increase the sentence, the Court did not  
          address the specific issue of those enhancements that carry a  
          choice of terms.  (See Cunningham v. California, 127 S. Ct. 856,  
          863 (2007).)  

          Since the enactment of SB 40, the California Court of Appeal has  
          found that section 1170.1 "suffers from the identical  
          constitutional infirmities identified by the United States  
          Supreme Court in Cunningham, supra, 549 U.S. 270 [127 S. Ct.  
          856], and is similarly unconstitutional.  The Legislature has  
          taken no step to amend this provision to render it compliant  
          with the Sixth Amendment . . ."  People v. Lincoln, 157 Cal.  
          App. 4th 196, 205 (2007).  SB 150 (Wright), Chap. 171, Stats. of  
          2009, did just that.  SB 150 applied the same "fix" to sentence  
          enhancement triads that SB 40 applied to the base term triads:  
          It authorized the court to impose any of the three terms without  
          making any additional factual findings.  This approach was  
          expressly approved by the California Supreme Court in People v.  
          Sandoval, 41 Cal.4th 825, 844-845 (2007).




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          5.  Sunset Provision  

          As described in Comment 3 above, SB 40, by its own terms, was  
          intended to maintain stability in California's criminal justice  
          system while the broader sentencing policy issues in California are  
          being reviewed.  SB 40 was introduced a few months after the  
          Governor declared a state of emergency as a result of prison  
          overcrowding.  (Prison Overcrowding State of Emergency  
          Proclamation, Proclamation by the Governor of the State of  
          California, October 4, 2006.  
           http://gov.ca.gov/index.php?/proclamation/4278/  .)  The provisions  
          of SB 40 originally were due to sunset on January 1, 2009, but were  
          later extended to January 1, 2011 (SB 1701 (Romero) - Ch. 416,  
          Stats. 2008).  SB 150 also included a sunset provision that  
          corresponds to the date upon which the provisions of SB 40 will  
          also sunset.  

          This bill would extend the sunset provisions on both SB 40 and SB  
          150 from their current sunset date of January 1, 2011 to January 1,  
          2012.

          SHOULD THIS SUNSET DATE BE EXTENDED?


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