BILL ANALYSIS ------------------------------------------------------------ |SENATE RULES COMMITTEE | AB 2263| |Office of Senate Floor Analyses | | |1020 N Street, Suite 524 | | |(916) 651-1520 Fax: (916) | | |327-4478 | | ------------------------------------------------------------ THIRD READING Bill No: AB 2263 Author: Yamada (D) Amended: 8/20/10 in Senate 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. Senator Floor Amendments of 8/20/10 add technical chaptering amendments. ANALYSIS : Existing law provides that when a judgment of CONTINUED AB 2263 Page 2 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. (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. AB 2263 Page 3 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.) 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 AB 2263 Page 4 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, 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 AB 2263 Page 5 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], 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. This bill incorporates amendments to Section 1170 of the Penal Code proposed by SB 399 (Yee), contingent on the prior enactment of that bill. 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 AB 2263 Page 6 SUPPORT : (Verified 8/16/10) Los Angeles County District Attorney's Office (source) ARGUMENTS IN SUPPORT : According to the author's office, 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:kc 8/23/10 Senate Floor Analyses SUPPORT/OPPOSITION: SEE ABOVE **** END ****