BILL ANALYSIS Ó AB 520 Page 1 ASSEMBLY THIRD READING AB 520 (Ammiano) As Introduced February 15, 2011 Majority vote PUBLIC SAFETY 4-3 ----------------------------------------------------------------- |Ayes:|Ammiano, Cedillo, | | | | |Mitchell, Skinner | | | | | | | | |-----+--------------------------+-----+--------------------------| |Nays:|Knight, Hagman, Hill | | | | | | | | ----------------------------------------------------------------- SUMMARY : Prohibits imposition of the upper term of imprisonment unless aggravating factors are found to be true by the finder of fact. Specifically, this bill : 1)Makes a legislative declaration that, to ensure proportionality in sentencing, upper terms should be reserved for individual cases in which aggravating facts exist and have been proven to be true. 2)Provides that the court may not impose an upper term based on aggravating facts unless the facts were first presented to the fact-finder and the fact-finder found the facts to be true. 3)Requires the court to state the reasons for its sentence choice on the record at the time of sentencing, including the specific facts in aggravation, if any, relied upon to impose an upper term. 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 AB 520 Page 2 the offense as determined by the Legislature to be imposed by the court with specified discretion. 2)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. 3)Provides that when a sentencing enhancement specifies three possible terms, the choice of the appropriate term shall rest within the sound discretion of the court. 4)Provides that sentencing choices requiring a statement of a reason include "Ýs]electing one of the three authorized prison terms referred to in ÝPenal Code] section 1170(b) for either an offense or an enhancement." 5)Requires the sentencing judge to consider relevant criteria enumerated in the Rules of Court. 6)Provides that, in exercising discretion to select one of the three authorized prison terms referred to in Penal Code 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." 7)Prohibits the sentencing court from using a fact charged and found as an enhancement as a reason for imposing the upper term unless the court exercises its discretion to strike the punishment for the enhancement. 8)Prohibits the sentencing court from using a fact that is an element of the crime to impose a greater term. 9)Enumerates circumstances in aggravation, relating both to the crime and to the defendant, as specified. 10)Enumerates circumstances in mitigation, relating both to the crime and to the defendant, as specified. AB 520 Page 3 FISCAL EFFECT : Unknown. This bill is keyed non-fiscal by the Legislative Counsel. COMMENTS : According to the author, "Following conviction or upon a plea, a judge can unilaterally find that there are aggravating circumstances and impose the upper term. While it is appropriate for a judge to state his or her reason for imposing a sentence that can be more than twice the length of the lower sentence, the aggravating factors should be true, and the only way to determine this is to put the facts before a jury or independent factfinder which the U.S. Supreme Court declared in its 2007 decision. "This small policy change will instill a great sense of fairness in our judicial system. The sponsors and I want to hold people who break the law accountable for their actions, and if a jury or independent factfinder finds that there are true factors in aggravation, then the highest available sentence should be imposed. If not, judges need to follow the law and impose the middle term unless there are factors that have actually been found to be true." Please see the policy committee for a full discussion of this bill. Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744 FN: 0000443