BILL ANALYSIS
SB 150
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Date of Hearing: July 8, 2009
ASSEMBLY COMMITTEE ON APPROPRIATIONS
Kevin De Leon, Chair
SB 150 (Wright) - As Amended: April 16, 2009
Policy Committee: Public
SafetyVote: 7-0
Urgency: No State Mandated Local Program:
No Reimbursable:
SUMMARY
This bill provides that when a court imposes a sentence
enhancement with a lower, middle or upper term, as specified,
the court shall select the enhancement that, in the court's
discretion, best serves the interests of justice, rather than
presumptively imposing the middle term absent aggravating or
mitigating circumstances, pursuant to current law. The court
shall also state its reasons for its choice on the record, as
specified in current law pertaining to the base term. (SB 40
(Romero), Statutes of 2007.) Specifically, this bill:
1)Eliminates the presumption for the middle term sentence
enhancement pursuant to the ruling in Cunningham vs.
California (U.S. Supreme Court, 2007).
2)Sunsets the provisions of this bill on January 1, 2011.
FISCAL EFFECT
Unknown moderate annual GF costs, potentially in the low
millions of dollars, for increased state prison terms to the
extent more offenders receive the upper enhancement rather than
the current presumptive middle enhancement.
While many judges, defense attorneys and prosecutors suggest
this measure will not significantly alter current sentencing
patterns, even a minor increase in the number of offenders
receiving the upper enhancement could have significant costs,
given the large base of offenders. For example, assuming more
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than 60,000 offenders receive determinate prison sentences in
2009-10, and assuming that only 5% are eligible for triad
enhancements, if an additional 5% received the upper enhancement
and served an additional six months, the annual cost would
exceed $3.5 million, based on per capita costs.
Also, the number of offenders receiving the lower enhancement
could increase, though discussions with practitioners suggest
there is little reason to believe any increase in the number of
lower term sentences will offset the increase in upper term
sentences.
Based on CDCR figures for 2008, it appears the number of upper
terms per the number of determinate sentences has actually
decreased slightly, from about 18% to about 15%. These figures
support the contention that the "Cunningham fix" will not
increase the number of upper term and, analogously, that
applying the SB 40 fix to enhancements will not have a
significant impact on enhancements.
COMMENTS
1)Rationale. In 2007, in Cunningham v. California, the U.S.
Supreme Court held that California's determinate sentencing
law (DSL) violated a defendant's right to a jury trial because
it authorized the court to increase a defendant's sentence by
finding facts not reflected in the jury verdict. Specifically,
because a 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,
the scheme is constitutionally flawed.
The Court suggested 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) Statutes 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, however, neglected
to apply this law to sentence enhancements.
AB 150 applies the same SB 40 solution to enhancements by
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authorizing the court to impose any of the three terms without
making any additional factual findings.
2)Sunset . When chaptered, SB 40 was intended to maintain
stability in California's criminal justice system while
broader sentencing issues in California were reviewed. The
provisions of SB 40 originally were due to sunset on January
1, 2009, but were extended to January 1, 2011, the same sunset
included in this bill.
3)Current Law.
Most sentence enhancements provide for a specific term of
years. Some, however, require the court to select a lower,
middle or upper term. 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."
4)Prior Legislation. SB 40 (Romero), 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.
SB 1701 (Romero), Statutes of 2008, extended the SB 40 sunset
from January 1, 2009 to January 1, 2011.
Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081