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