BILL ANALYSIS
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|SENATE RULES COMMITTEE | SB 150|
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THIRD READING
Bill No: SB 150
Author: Wright (D)
Amended: 4/16/09
Vote: 27
SENATE PUBLIC SAFETY COMMITTEE : 7-0, 4/14/09
AYES: Leno, Benoit, Cedillo, Hancock, Huff, Steinberg,
Wright
SENATE APPROPRIATIONS COMMITTEE : 12-0, 5/28/09
AYES: Kehoe, Cox, Corbett, Denham, DeSaulnier, Hancock,
Leno, Oropeza, Runner, Walters, Wyland, Yee
NO VOTE RECORDED: Wolk
SUBJECT : Sentence enhancements: choice of terms
SOURCE : Los Angeles District Attorneys Office
DIGEST : This bill (1) allows 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) requires the court to state its reasons on
the record, and (3) provides a "sunset" date of January 1,
2011, for these provisions.
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
least four days prior to the time set for imposition of
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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. [Section 1170(b) of the Penal
Code]
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
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(Romero) to address Cunningham v. California in 2007,
sunsets on January 1, 2009. [Section 1170.3 of the Penal
Code]
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/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
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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 Sections 1170 and 1170.3 of the Penal
Code, 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 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 Sections 1170 and 1170.3 of the Penal
Code (SB 40) also included a "sunset" provision declaring
that its provisions 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
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the middle term on the enhancement unless there are
circumstances in aggravation or mitigation. [Section
186.22, 186.33, 12021.5, 12022.2, 12022.3, and 12022.4 of
the Penal Code]
This bill, when a sentence enhancement calls for the court
to select either a lower, middle, or upper term, deletes
the requirement that the court impose the middle term
unless there are circumstances in aggravation or mitigation
and, instead, provides that the choice of term will be
within the court's discretion. The court will be required
to state its reasons for its sentencing choice on the
record.
This bill provides that its provisions "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.
FISCAL EFFECT : Appropriation: No Fiscal Com.: Yes
Local: No
According to the Senate Appropriations Committee:
Fiscal Impact (in thousands)
Major Provisions 2009-10 2010-11 2011-12 Fund
Judge authority to apply Unknown, potentially
significant costs General
upper term of enhancement
Judge authority to apply Unknown, potentially
significant costs General
lower term of enhancement
SUPPORT : (Verified 5/28/09)
Los Angeles District Attorney's Office (source)
California Peace Officers' Association
California Police Chiefs Association
California State Sheriffs' Association
Crime Victims United of California
Department of Justice
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ARGUMENTS IN SUPPORT : 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 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."
RJG:mw 5/28/09 Senate Floor Analyses
SUPPORT/OPPOSITION: SEE ABOVE
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