BILL ANALYSIS
SB 150
Page 1
Date of Hearing: June 23, 2009
Counsel: Kimberly A. Horiuchi
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Juan Arambula, Chair
SB 150 (Wright) - As Amended: April 16, 2009
SUMMARY : Provides that where a court imposes a sentence
enhancement with a lower, middle or upper term, as specified,
the choice of term will be within the court's discretion; and in
imposing one of those three sentences, the court must state its
reasons for its sentencing choice on the record, as specified in
SB 40 (Romero), Chapter 3, Statutes of 2007. Specifically, this
bill :
1)Eliminates the presumption for the middle term in specified
sentence enhancements previously ruled unconstitutional in
Cunningham vs. California.
2)Sunsets the provisions of this bill 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.
EXISTING LAW :
1)States the Legislature finds and declares that the purpose of
imprisonment for crime is punishment. This purpose is best
served by terms proportionate to the seriousness of the
offense with provision for uniformity in the sentences of
offenders committing the same offense under similar
circumstances. The Legislature further finds and declares
that the elimination of disparity and the provision of
uniformity of sentences can best be achieved by determinate
sentences fixed by statute in proportion to the seriousness of
the offense as determined by the Legislature to be imposed by
the court with specified discretion. [Penal Code Section
1170(a)(1).]
2)Provides that in any case in which the punishment prescribed
by statute for a person convicted of a public offense is a
term of imprisonment in the state prison of any specification
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of three time periods, the court shall sentence the defendant
to one of the terms of imprisonment specified unless the
convicted person is given any other disposition provided by
law, including a fine, jail, probation, or the suspension of
imposition or execution of sentence or is sentenced pursuant
to existing law, or because he or she had committed his or her
crime prior to July 1, 1977. In sentencing the convicted
person, the court shall apply the sentencing rules of the
Judicial Council. The court, unless it determines that there
are circumstances in mitigation of the punishment prescribed,
shall also impose any other term that it is required by law to
impose as an additional term. Nothing in this article shall
affect any provision of law that imposes the death penalty,
that authorizes or restricts the granting of probation or
suspending the execution or imposition of sentence, or
expressly provides for imprisonment in the state prison for
life. In any case in which the amount of pre-imprisonment
credit under existing law or any other provision of law is
equal to or exceeds any sentence imposed pursuant to this
chapter, the entire sentence shall be deemed to have been
served and the defendant shall not be actually delivered to
the custody of the secretary. [Penal Code Section
1170(a)(2).]
3)Requires 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. 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 to dispute facts in the record or
the probation officer's report, or to present additional
facts. In determining whether there are circumstances that
justify imposition of the upper or lower term, the court may
consider the record in the case, the probation officer's
report, 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 set forth on the record the facts and reasons for
imposing the upper or lower term. 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
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is suspended. [Penal Code Section 1170(b).]
FISCAL EFFECT : None
COMMENTS :
1)Author's Statement : According to the author, "SB 150 corrects
a constitutional flaw in California's sentencing law that
prevents prosecutors from seeking the maximum term for current
law sentence enhancements. In 2007, the United States Supreme
Court held that California's determinate sentencing law (DSL)
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
discretion to impose the higher term without additional
findings of fact.
"SB 40 (Romero) of 2007 corrected the constitutional problem by
giving judges the discretion to impose a minimum, medium or
maximum term, without additional findings of fact. 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 this law to sentence enhancements.
Without the SB 40 constitutional fix, a judge 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. SB 150 corrects
the above problem by conforming the sentence enhancement law
to the approach adopted by the Legislature in SB 40 (Romero).
If enacted, SB 150, along with SB 40, will sunset on January
1, 2011. This will give the Legislature the opportunity to
evaluate the sentencing law to determine whether adjustments
or further reforms are necessary."
2)Cunningham vs. California and the Sixth Amendment Right to a
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Jury Trial : Cunningham held California's DSL violated the
defendant's Sixth Amendment right to a jury trial because it
authorized the court to increase the defendant's sentence by
finding facts not reflected in the jury verdict.
Specifically, the trial judge could find factors in
aggravation beyond a preponderance of evidence to increase the
offender's sentence from the presumptive middle term to the
upper term and, as such, is constitutionally flawed. The
Court stated, "Because the DSL authorizes the judge, not the
jury, to find the facts permitting an upper term sentence, the
sentence cannot withstand measurement against our Sixth
Amendment precedent." [Cunningham at 21.] Cunningham
overruled the California State Supreme Court in People vs.
Black (2005) 35 Cal. 4th 1238. Black held California's DSL
constitutional. The California Supreme Court stated:
"In operation and effect, the provisions of the California DSL
simply authorize a sentencing court to engage in the type of
fact-finding that traditionally has been incident to the
judge's selection of an appropriate sentence within a
statutorily prescribed sentencing range. Therefore, the upper
term is the 'statutory maximum' and a trial court's imposition
of an upper term sentence does not violate a defendant's right
to a jury trial under the principles set forth in [existing
law]." [Black at 1254.]
The United States Supreme Court relied on several earlier
decisions to justify the holding in this case. In 2000, the
Court ruled in Apprendi vs. New Jersey 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.
[Apprendi vs. New Jersey (2000) 530 US 466, 490; Cunningham at
1.] The United States Supreme Court further clarified this
"bright-line rule" in Blakely vs. Washington, "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 vs.
Washington (2004) 542 U.S. 296, 303.] In 2005, the United
States Supreme Court struck down portions of the Federal
Sentencing Guidelines (FSG) in Booker vs. United States (2005)
543 U.S. 220. However, the Court saved the FSG by excising
the part of the guidelines it found unconstitutional, namely
the provision making the guidelines binding on district
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judges. The Court reasoned:
"If the [FSG] as currently written could be read as merely
advisory provisions that recommended, rather than required,
the selection of particular sentences in response to differing
sets of facts, their use would not implicate the Sixth
Amendment. We have never doubted the authority of a judge to
exercise broad discretion in imposing a sentence within a
statutory range. Indeed, everyone agrees that the
constitutional issues presented by [this case] would have been
avoided entirely if Congress had omitted from the [FSG] the
provisions that make the Guidelines binding on district
judges. . . . For when a trial judge exercises his
discretion to select a specific sentence within a defined
range, the defendant has no right to a jury determination of
the facts that the judge deems relevant."
3)SB 40 (Romero), Chapter 3, Statutes of 2008 Amended the DSL :
While the Supreme Court, in its Cunningham decision found that
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
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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
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.
4)Sentencing Enhancements with a Triad : Most sentence
enhancements provide for a specific term of years. [See e.g.,
Penal Code Section 667(a) states five years for each prior
serious felony conviction.] However, some sentence
enhancements, such as 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 Section 12022.5(a), imposing
a sentence enhancement of three, four or ten years for
personally using a firearm in the commission of a felony.]
Penal Code Section 1170.1(b) 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 California's sentence
enhancements, per se, 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 Penal Code 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
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Legislature has taken no step to amend this provision to
render it compliant with the Sixth Amendment . . . . "
[People v. Lincoln (2007) 157 Cal. App. 4th 196, 205]. This
bill would do just that and applies the same "fix" to sentence
enhancement triads that SB 40 applied to the base term triads:
this bill 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 (2007) 41 Cal.4th 825, 844-845.
Additionally, the California Rules of Court have been amended
so as to honor the intent of Cunningham and SB 40 and no
longer express a presumption for the middle term on
enhancements with a choice of sentence.
The Judicial Council Advisory Committee stated:
"It is an open question whether the definitions [of aggravation
and mitigation] apply to enhancements for which the statute
provides for three possible terms. The Legislature in SB 40
amended section 1170(b) but did not modify sections 1170.1(d),
12022.2(a), 12022.3(b), or any other section providing for an
enhancement with three possible terms. The latter sections
provide that 'the court shall impose the middle term unless
there are circumstances in aggravation or mitigation.' [See,
e.g., section 1170.1(d).] It is possible, although there are
no cases addressing the point, that this enhancement triad
with the presumptive imposition of the middle term runs afoul
of Cunningham. Because of this open question, rule 4.428(b)
was deleted." (Rules of Court Section 4.405, Advisory
Committee Comments.)
5)Sunset Provision : SB 40 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.
Despite the Governor's Proclamation, the Legislature has not
approved any significant changes to the way criminal offenders
are sentenced. The provisions of SB 40 originally were due to
sunset on January 1, 2009, but were later extended to January
1, 2011. [See SB 1701 (Romero), Chapter 416, Statutes of
2008.]
6)Prior Legislation :
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a) SB 1701 (Romero), Chapter 416, Statutes of 2007,
extended the sunset date from January 1, 2009 to January 1,
2011 for which a court sentencing a defendant in the wake
of Cunningham vs. California and the enactment of SB 40
(Romero), Chapter 3, Statutes of 2007, may impose the
lower, middle or upper term of imprisonment, as specified.
b) SB 40 (Romero), Chapter 3, Statutes of 2007 amended
California's DSL to state that where a court may impose a
lower, middle or upper term in sentencing a criminal
defendant, the choice of appropriate term shall be left to
the discretion of the court to sentence in the best
interest of justice.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles County District Attorney's Office (Sponsor)
Association for Los Angeles Deputy Sheriffs
California District Attorneys Association
California State Sheriffs' Association
Crime Victims United
Riverside Sheriffs' Association
Opposition
None
Analysis Prepared by : Kimberly Horiuchi / PUB. S. / (916)
319-3744