BILL ANALYSIS
SENATE COMMITTEE ON PUBLIC SAFETY
Senator Mark Leno, Chair S
2009-2010 Regular Session B
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SB 150 (Wright)
As Introduced February 12, 2009
Hearing date: April 14, 2009
Penal Code
SM:mc
SENTENCE ENHANCEMENTS: CHOICE OF TERMS
HISTORY
Source: Los Angeles District Attorney's Office
Prior Legislation: SB 1701 (Romero) - Chapter 416, Stats. 2008
SB 1342 (Cogdill) - died in Senate Public Safety;
2008
SB 40 (Romero) - Chapter 3, Stats. 2007
Support: California District Attorneys Association; Department
of Justice; California Peace Officers'
Association; California Police Chiefs Association; California
State Sheriffs' Association; Crime Victims United of
California
Opposition:None known
(NOTE: ANALYSIS REFLECTS AUTHOR'S AMENDMENTS TO BE OFFERED IN
COMMITTEE<1>)
KEY ISSUE
---------------------------
<1> See Comments 1 and 6.
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WHERE A SENTENCE ENHANCEMENT PROVIDES FOR ONE OF THREE TERMS OF
IMPRISONMENT, SHOULD JUDGES BE AUTHORIZED TO IMPOSE ANY ONE OF
THOSE TERMS, AT THE COURT'S DISCRETION?
PURPOSE
The purpose of this bill is to (1) allow courts, when imposing
sentence enhancements that provide for an upper, middle or lower
term, to select the appropriate term at the court's discretion;
(2) require the court to state its reasons on the record; and
(3) provide a "sunset" date of January 1, 2011, for these
provisions.<2>
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,
----------------------------
<2> The sunset provision will be added to the bill as an
author's amendment in Committee.
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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;
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
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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
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 . . .
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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
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 require the court to impose the middle
term on the enhancement unless there are circumstances in
aggravation or mitigation. (Penal Code 186.22, 186.33,
12021.5, 12022.2, 12022.3, 12022.4.)
This bill would, when a sentence enhancement calls for the court
to select either a lower, middle, or upper term, delete the
requirement that the court impose the middle term unless there
are circumstances in aggravation or mitigation and instead
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provide that the choice of term will be within the court's
discretion. The court would be required to state its reasons
for its sentencing choice on the record.
This bill provides that its provisions would "sunset" at the
same time as the similar provisions of SB 40, January 1, 2011,
unless a statute enacted before that date either deletes or
extends that date.
RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
California continues to face a severe prison overcrowding
crisis. The Department of Corrections and Rehabilitation (CDCR)
currently has about 170,000 inmates under its jurisdiction. Due
to a lack of traditional housing space available, the department
houses roughly 15,000 inmates in gyms and dayrooms.
California's prison population has increased by 125% (an average
of 4% annually) over the past 20 years, growing from 76,000
inmates to 171,000 inmates, far outpacing the state's population
growth rate for the age cohort with the highest risk of
incarceration.<3>
In December of 2006 plaintiffs in two federal lawsuits against
CDCR sought a court-ordered limit on the prison population
pursuant to the federal Prison Litigation Reform Act. On
February 9, 2009, the three-judge federal court panel issued a
tentative ruling that included the following conclusions with
respect to overcrowding:
No party contests that California's prisons are
overcrowded, however measured, and whether considered
in comparison to prisons in other states or jails
within this state. There are simply too many
----------------------
<3> "Between 1987 and 2007, California's population of ages 15
through 44 - the age cohort with the highest risk for
incarceration - grew by an average of less than 1% annually,
which is a pace much slower than the growth in prison
admissions." (2009-2010 Budget Analysis Series, Judicial and
Criminal Justice, Legislative Analyst's Office (January 30,
2009).)
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prisoners for the existing capacity. The Governor,
the principal defendant, declared a state of emergency
in 2006 because of the "severe overcrowding" in
California's prisons, which has caused "substantial
risk to the health and safety of the men and women who
work inside these prisons and the inmates housed in
them." . . . A state appellate court upheld the
Governor's proclamation, holding that the evidence
supported the existence of conditions of "extreme
peril to the safety of persons and property."
(citation omitted) The Governor's declaration of the
state of emergency remains in effect to this day.
. . . the evidence is compelling that there is no
relief other than a prisoner release order that will
remedy the unconstitutional prison conditions.
. . .
Although the evidence may be less than perfectly
clear, it appears to the Court that in order to
alleviate the constitutional violations California's
inmate population must be reduced to at most 120% to
145% of design capacity, with some institutions or
clinical programs at or below 100%. We caution the
parties, however, that these are not firm figures and
that the Court reserves the right - until its final
ruling - to determine that a higher or lower figure is
appropriate in general or in particular types of
facilities.
. . .
Under the PLRA, any prisoner release order that we
issue will be narrowly drawn, extend no further than
necessary to correct the violation of constitutional
rights, and be the least intrusive means necessary to
correct the violation of those rights. For this
reason, it is our present intention to adopt an order
requiring the State to develop a plan to reduce the
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prison population to 120% or 145% of the prison's
design capacity (or somewhere in between) within a
period of two or three years.<4>
The final outcome of the panel's tentative decision, as well as
any appeal that may be in response to the panel's final
decision, is unknown at the time of this writing.
This bill does not appear to aggravate the prison overcrowding
crisis outlined above.
COMMENTS
1. Author's Amendments
The author will offer amendments in Committee to add a sunset
provision and to make technical, non-substantive changes in the
language.
2. Need for This Bill
According to the author:
In 2007, the United States Supreme Court held that
California's determinate sentencing law violated a
defendant's right to a jury trial because a judge was
required to make factual findings in order to justify
imposing the maximum term of a sentencing triad.
Cunningham v. California (2007) 549 US 270. The
Supreme Court suggested that this problem could be
corrected by either providing for a jury trial on the
sentencing issue or by giving judges authority to
impose either higher term without additional findings
----------------------
<4> Three Judge Court Tentative Ruling, 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 (Feb. 9, 2009).
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of fact. SB 40 corrected the constitutional problem
by giving judges this discretion. SB 40's approach
was embraced by the California Supreme Court in People
v. Sandoval (2007) 41 Cal 4th 825, 843-852.
However, SB 40 neglected to apply the fix to sentence
enhancements. Without SB 40 constitutional fix, a
judge arguably has no authority to apply the upper
term of a sentence enhancement.
Thirty-eight sentence enhancements are currently
subject to the unconstitutional sentencing scheme set
forth in current law. The conduct which these
enhancements reach includes hate crime, use of or
being armed with deadly weapons during sex crimes or
attempted sex crimes, intentional infliction of great
bodily injury or death as a result of discharging a
firearm from a vehicle, and possession of metal
penetrating ammunition during the commission of a
felony. Without SB 40's constitutional fix, a court is
without legal authority to impose the upper or maximum
term of an enhancement.
This bill corrects the above problem by applying SB
40's constitutional fix to sentence enhancements.
3. 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
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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
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.
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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
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.)
4. SB 40 (2007) Amended California's DSL to Satisfy
Constitutional Requirements
While the Supreme Court, in its Cunningham decision, found that
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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
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
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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.
5. 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 would do just that. SB 150
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applies the same "fix" to sentence enhancement triads that SB 40
applied to the base term triads: It authorizes 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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6. 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/ .) Despite the
Governor's Proclamation, the Legislature has not approved any
significant changes to the way it sentences criminal offenders.
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). The author will offer an amendment to SB
150 to include a sunset provision that corresponds to the date upon
which the provisions of SB 40 will also sunset. This appears to be
consistent with the stated intent of SB 40.
WHERE A SENTENCE ENHANCEMENT PROVIDES FOR ONE OF THREE TERMS OF
IMPRISONMENT, SHOULD JUDGES BE AUTHORIZED TO IMPOSE ANY ONE OF
THOSE TERMS, AT THE COURT'S DISCRETION?
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