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  
          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  
                            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  

          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  

          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.