BILL ANALYSIS Senate Appropriations Committee Fiscal Summary Senator Christine Kehoe, Chair 2263 (Yamada) Hearing Date: 07/15/2010 Amended: 03/22/2010 Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety 7-0 _________________________________________________________________ ____ BILL SUMMARY: AB 2263 would extend the sunset 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, and SB 150 (Wright), Chapter 171, Statutes of 2009. _________________________________________________________________ ____ Fiscal Impact (in thousands) Major Provisions 2010-11 2011-12 2012-13 Fund Base sentence discretion Unknown; potentially significant costs or savings General Enhancement discretion Unknown; potentially significant costs or savings General _________________________________________________________________ ____ STAFF COMMENTS: This bill may meet the criteria for referral to the Suspense File. AB 2263 would extend the sunset of provisions of statute (enacted by SB 40 and SB 150) that sought to conform the state's determinate sentencing law to the findings in Cunningham v. California. The Cunningham decision found a portion of California's determinate sentencing laws unconstitutional, on the ground that they violated an individual's right to a jury trial. The former version of the state's basic determinate sentencing statute provided that, for crimes punishable by three possible terms, the court had to impose the middle term of imprisonment unless it found circumstances in aggravation or mitigation. If the court found that there were aggravating or mitigating circumstances, it could impose an upper or lower term (former Penal Code section 1170(b), pre-SB 40, Stats. 2007, c. 3). However, in 2007, the U.S. Supreme Court held upper term sentencing, under California's determinate sentencing law, invalid under the Sixth Amendment. In Blakely v. Washington 542 U.S. 296 (2004), the U.S. Supreme Court held in order to comport with the Sixth Amendment, any fact (other than a prior conviction) that exposes a defendant to a sentence beyond the relevant statutory maximum must be found by a jury beyond a reasonable doubt or admitted by the defendant. Subsequently, in Cunningham v. California 549 U.S. (2007), the U.S. Supreme Court held that California's determinate sentencing law violated Blakely because the middle term was the statutory maximum for the crime, but the law allowed the court to impose the upper term based on circumstances in aggravation found by the court by a preponderance of the evidence. Page 2 AB 2263 (Yamada) In light of Cunningham, the Legislature amended Penal Code section 1170(b) (effective March 30, 2007) to fix the constitutional defect inherent in the statute with regard to the term imposed for the crime. Accordingly, under current law, Penal Code section 1170(b) gives the court discretion to choose the appropriate term, based on the interest of justice, from the three-term range provided as punishment for the crime. Since the middle term is no longer the presumptive term of imprisonment, the defendant has no right to a jury trial, with proof beyond a reasonable doubt, on circumstances in aggravation that would support the imposition of the upper term. SB 150 addressed the same constitutional issue for sentence enhancements, some of which are punishable by three possible terms. It deleted the requirement that the court impose the middle term unless it found circumstances in aggravation or mitigation and instead provided that the choice of term will be within the court's discretion, when a sentence enhancement called for the court to select either a lower, middle, or upper term. The fiscal impact of extending the provisions is unclear because the costs are determined by the behavior and decisions of individual judges in sentencing hearings. This bill poses potentially significant annual General Fund costs, for increased state prison terms to the extent that more offenders receive aggravated enhancement terms than the current presumptive middle term. In the absence of a sunset extension, the court would no longer be able to go above the middle term of a base sentence or an enhancement. By giving judges this discretion, there is a potential for increased incarceration time, which is a cost to the General Fund in future years. This bill also, however, gives judges the authority to impose the lower limit of enhancement. This bill could result in costs incurred in 2011, but those additional costs would not be paid until after the middle term is served of the sentence, the enhancement, or both.