BILL ANALYSIS                                                                                                                                                                                                    



                                                                       



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          |SENATE RULES COMMITTEE            |                  AB 2263|
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                                 THIRD READING


          Bill No:  AB 2263
          Author:   Yamada (D)
          Amended:  3/22/10 in Assembly
          Vote:     27

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 6/22/10
          AYES:  Leno, Cogdill, Cedillo, Hancock, Huff, Steinberg,  
            Wright

           SENATE APPROPRIATIONS COMMITTEE  :  11-0, 8/12/10
          AYES:  Kehoe, Ashburn, Alquist, Corbett, Emmerson, Leno,  
            Price, Walters, Wolk, Wyland, Yee

           ASSEMBLY FLOOR  :  77-0, 6/1/10 - See last page for vote


           SUBJECT  :    Sentencing:   choice of term

           SOURCE  :     Los Angeles County District Attorneys Office


           DIGEST  :    This bill extends the provisions of SB 150  
          (Wright), Chapter 171, Statutes of 2009 and SB 1701  
          ((Romero), Chapter 416, Statutes of 2008, 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 courts discretion.

           ANALYSIS  :    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  
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          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.  (Penal Code Section 1170(b).)

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

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

             A.    Grant or deny probation.
             B.    Impose the lower, middle, or upper prison term.
             C.    Impose concurrent or consecutive sentences.
             D.    Determine whether or not to impose an enhancement  
                where that 
                determination is permitted by law.

          2. 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.  (Penal Code Section 1170.3.)

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

          1. 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. 

          2. 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.

          3. 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 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. 
          
          4. A fact that is an element of the crime upon which  
             punishment is being imposed may not be used to impose a  
             greater term. 

          5. 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  

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          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, Statutes 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 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  
          its 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  

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          discretion of the court.  (SB 150 [Wright], Chapter 171,  
          Statutes of 2009)  (Penal Code Sections 186.22, 186.33,  
          12021.5, 12022.2, 12022.3, 12022.4.)  SB 150 also included  
          a "sunset" provision, declaring that its provisions 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 extends the sunset dates enacted in SB 1701 and  
          SB 150 to January 1, 2012.

           Prior Legislation  

          SB 150 (Wright), Chapter 171, Statutes of 2009, passes with  
          a vote of 39-0 on June 3, 2009.

          SB 1701 (Romero), Chapter 416, Statutes of 2008, passes  
          with a vote of 3801, with McClintock voting 'No', on  
          September 27, 2008.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes    
          Local:  No

          According to the Senate Appropriations Committee analysis:

                          Fiscal Impact (in thousands)

           Major Provisions                2010-11     2011-12     
           2012-13   Fund  

          Base sentence discretion                     Unknown,  
          potentially significant                      General
                              costs or savings

          Enhancement discretion                       Unknown,  
          potentially significant                      General
                              costs or savings

           SUPPORT  :   (Verified  8/16/10)

          Los Angeles County District Attorney's Office (source)


           ARGUMENTS IN SUPPORT  :    According to the author's office,  

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          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  .

           ASSEMBLY FLOOR  : 
          AYES:  Adams, Ammiano, Anderson, Arambula, Bass, Beall,  
            Bill Berryhill, Blakeslee, Block, Blumenfield, Bradford,  
            Brownley, Buchanan, Caballero, Charles Calderon, Carter,  
            Chesbro, Conway, Cook, Coto, Davis, De La Torre, De Leon,  
            DeVore, Emmerson, Eng, Evans, Feuer, Fletcher, Fong,  
            Fuentes, Fuller, Furutani, Gaines, Galgiani, Garrick,  
            Gilmore, Hagman, Hall, Harkey, Hayashi, Hernandez, Hill,  
            Huber, Huffman, Jeffries, Jones, Knight, Lieu, Logue,  
            Bonnie Lowenthal, Ma, Mendoza, Miller, Monning, Nava,  
            Nestande, Niello, Nielsen, Norby, V. Manuel Perez,  
            Portantino, Ruskin, Salas, Saldana, Silva, Skinner,  
            Smyth, Solorio, Swanson, Torlakson, Torres, Torrico,  
            Tran, Villines, Yamada, John A. Perez
          NO VOTE RECORDED:  Tom Berryhill, Audra Strickland, Vacancy


          RJG:do  8/16/10   Senate Floor Analyses 

                         SUPPORT/OPPOSITION:  SEE ABOVE

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