BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  AB 520
                                                                  Page  1

          Date of Hearing:   May 18, 2011

                        ASSEMBLY COMMITTEE ON APPROPRIATIONS
                                Felipe Fuentes, Chair

                AB 520 (Ammiano) - As Introduced:  February 15, 2011 

          Policy Committee:                              Public 
          SafetyVote:  4-3

          Urgency:     No                   State Mandated Local Program: 
          No     Reimbursable:              

           SUMMARY  

          This bill addresses the constitutional infirmity of the state's 
          three-tier determinate sentencing law (DSL) by prohibiting 
          imposition of the upper term of imprisonment unless aggravating 
          factors are found to be true by a jury. Specifically, this bill:

          1)Makes a legislative declaration that, to ensure 
            proportionality in sentencing, upper terms should be reserved 
            for cases in which aggravating facts have been proven to be 
            true.

          2)Provides the court may not impose an upper term based on 
            aggravating facts unless the facts were first presented to a 
            jury and the jury found the facts to be true. 

          3)Requires the court to state on the record at the time of 
            sentencing the specific facts in aggravation relied upon to 
            impose an upper term.

           FISCAL EFFECT
                      
          1)Unknown annual GF increase or decrease to the extent this 
            measure results in longer or shorter prison terms. While it is 
            unlikely this bill will significantly alter current sentencing 
            patterns, even a minor increase in the number of offenders 
            deviating from the middle term drives significant costs or 
            savings, given the large base of offenders (some 60,000 
            offenders received determinate prison sentences in 2009-10).  

            Based on CDCR figures from 2006 through 2009, the number of 
            upper terms per the number of determinate sentences increased 








                                                                  AB 520
                                                                  Page  2

            slightly, from about 15% to about 16%, though in actual 
            numbers, there were actually 250 fewer upward deviations in 
            2009 than in 2006. These figures appear to belie the 
            contention of proponents of AB 520 that current law, which 
            does not require that aggravating sentencing factors be pled 
            and proved, results in significantly more upper-term 
            sentences. 

            Moreover it is not clear that this bill might not actually 
            increase the number of upper terms as a result of proving and 
            pleading the aggravating factors. 

          2)Unknown, potentially significant increased annual GF costs to 
            the state trial courts to the extent requiring aggravating 
            facts to be pled and proved. For example, if 75% of 10,000 
            criminal cases took an average of two additional hours, 
            assuming hourly court costs of about $550 per hour, the annual 
            cost would be about $8 million.

           
          COMMENTS

          1)Rationale.  The author and sponsor, California Attorneys for 
            Criminal Justice, contend requiring a jury to hear and find 
            aggravating factors to be true before the upper term may be 
            applied, is the appropriate solution to the U.S. Supreme 
            Court's 2007 Cunningham decision that judges could not simply 
            increase sentences to the upper term by finding facts not 
            reflected in a jury verdict. 

            In 2007, in Cunningham vs. California, the U.S. Supreme Court 
            held that California's 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 a jury trial on the sentencing issue or by giving 
            judges discretion to impose the higher term without additional 
            findings of fact. 

            California opted for the latter solution. SB 40 (Romero), 
            Statutes of 2007, corrected the problem by giving judges 








                                                                  AB 520
                                                                  Page  3

            discretion to impose a minimum, medium or maximum term, 
            without additional findings of fact.  SB 150 (Wright), 
            Statutes of 2009, applied the same solution to sentence 
            enhancements. These bills were designed as temporary fixes to 
            maintain stability in California's criminal justice system 
            while broader sentencing issues in California  were reviewed. 
            The provisions of SB 40 sunset January 1, 2009, but were 
            extended to January 1, 2011 by SB 1701 (Romero), Statutes of 
            2008, and to Jan 1, 2012 by AB 2263 (Yamada) Statutes of 2010.

            This bill opts instead for requiring a jury to find 
            aggravating facts to be true. 

            According to the author, "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."

           2)California's DSL uses a triad scheme  comprising a presumptive 
            middle term, a mitigated - or lower - term, and an aggravated 
            - or upper - term. The triad sentencing structure provides the 
            court three sentencing options for each crime. For example, a 
            first-degree burglary offense is punishable by a prison 
            sentence of two, four, or six years. The upper and lower terms 
            provided in statute can be given if circumstances concerning 
            the crime or offender warrant more or less time in prison. In 
            determining whether there are circumstances warranting the 
            upper or lower term, the court may consider the record in the 
            case, the probation officer's report, other reports, including 
            reports received pursuant to existing law 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. The court must state for the record the 
            facts and reasons for imposing an upper or lower term. 

           3)Would AB 520 Burden the Criminal Justice System  ?  Opponents to 
            this measure, the Judicial Council and the District Attorneys 
            Association, contend this bill will swamp the courts with 
            lengthier cases. Proponents contend California already 
            provides a statutory requirement of a jury trial for many 








                                                                 AB 520
                                                                  Page  4

            enhancing factors, and that the added requirement will not 
            significantly burden the courts. Moreover, proponents note 
            that since defendants may consent to judicial fact-finding, 
            either as part of a plea-agreement or as part of a bifurcated 
            trial, most criminal proceeding are resolved by plea. 
            Therefore, it is not clear requiring aggravating factors to be 
            tried to a jury will burden the criminal justice system. 

           4)Support  . California Attorneys for Criminal Justice state that 
            the current Cunningham sentencing fix means "We have abandoned 
            the touchstone concept of our three-tiered system, namely that 
            the upper-term is reserved for the 'worst-of-the-worst' 
            offenses.  AB 520 restores this proportional sentencing 
            principle, and also resurrects the right to have a jury to 
            decide aggravating facts."

           5)Opposition  . The Judicial Council and the District Attorneys 
            Association contend the state's criminal justice system will 
            be inundated with lengthier cases. The Judicial Council also 
            objects to what it sees as a diminishment of judicial 
            discretion.  

           6)Related Legislation  . SB 576 (Calderon) extends the sunset 
            provisions on the current Cunningham fix from Jan 1, 2012 to 
            Jan 1, 2016. SB 576 is pending on the Senate Appropriations 
            Suspense File.              
           

           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081