BILL ANALYSIS
Senate Appropriations Committee Fiscal Summary
Senator Christine Kehoe, Chair
150 (Wright)
Hearing Date: 04/27/2009 Amended: 04/16/2009
Consultant: Jacqueline Wong-HernandezPolicy Vote: Public Safety
7-0
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BILL SUMMARY: This bill would eliminate the requirement that the
court impose the middle term of a enhancement, and instead
provide that the court shall exercise its discretion to choose a
between a lower, middle, or upper enhancement, as set forth in
statute, that best serves the interests of justice. This bill
would sunset January 1, 2011.
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Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11 2011-12 Fund
Judge authority to apply
General
upper term of an enhancement Unknown, potentially
significant costs
Judge authority to apply
lower term of enhancement Unknown, potentially
significant savings General
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STAFF COMMENTS: This bill may meet the criteria for referral to
the Suspense File.
The fiscal impact of this bill is unclear because its cost is
determined by the behavior and decisions of individual judges in
sentencing hearings. This bill poses potentially significant
annual GF costs, for increased state prison terms to the extent
that more offenders receive aggravated enhancement terms than
the current presumptive middle term. By giving judges this
discretion, there is a potential for increased incarceration
time, which is a cost to the GF. This bill also, however, gives
judges the authority to impose the lower limit of enhancement.
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 there were 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
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SB 150 (Wright)
term based on circumstances in aggravation found by the court by
a preponderance of the evidence.
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.
While most crimes are punishable by three possible terms under
Penal Code section 1170(b), some enhancements are also
punishable by three possible terms pursuant to Penal Code
section 1170.1(d). Penal Code section 1170.1(d), however, still
provides that the court must impose the middle term unless there
are circumstances in aggravation or mitigation. The Legislature
amended Penal Code section 1170(b) relating to the terms for
crimes, but it did not amend Penal Code section 1170.1(d)
relating to the terms for enhancements. In addition to
inconsistent policy for sentencing crimes and enhancements, a
court held that the procedure in PC 1170.1(d), which allows the
court to find circumstances in aggravation for enhancements, is
unconstitutional (People v. Lincoln (2007) 157 Cal. App. 4th
196).
Since the passage of SB 40, there appears to be a minor increase
in the number of upper term sentences (approximately 2.3%).
Without additional time, data, and analysis of specific cases it
is not possible to conclude that this increase is directly
attributable to SB 40. Discretionary enhancement may also have
an effect on plea bargaining, because the more severe options
available to judges can be leveraged as part of a please
bargain. At this time, the exact effect is unclear.