BILL ANALYSIS                                                                                                                                                                                                    ”



                                                                  AB 520
                                                                  Page  1


          ASSEMBLY THIRD READING
          AB 520 (Ammiano)
          As Introduced  February 15, 2011
          Majority vote 

           PUBLIC SAFETY       4-3                                         
           
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          |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 "›s]electing one of the three authorized prison 
            terms referred to in ›Penal 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 


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