BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2011-2012 Regular Session               B

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          SB 576 (Calderon)                                           
          As Introduced February 17, 2011 
          Hearing date:  April 5, 2011
          Penal Code
          SM:dl

                              SENTENCING: CHOICE OF TERMS  

                                       HISTORY

          Source:  Los Angeles District Attorney

          Prior Legislation: AB 2263 (Yamada) - Chap. 256, Statutes of 
          2010 
                       SB 150 (Wright) - Chap. 171, Statutes of 2009
                       SB 1701 (Romero) - Chapter 416, Statutes of 2008
                       SB 1342 (Cogdill) - died in Senate Public Safety; 
          2008
                       SB 40 (Romero) - Chapter 3, Statutes of 2007

          Support:  California District Attorneys' Association; California 
                    Peace Officers Association; California State Sheriffs' 
                    Association

          Opposition:California Attorneys for Criminal Justice




                                         KEY ISSUE
           
          SHOULD THE SUNSET DATE ON SPECIFIED SENTENCING PROVISIONS BE 
          EXTENDED TO JANUARY 1, 2016, ALLOWING COURTS TO SELECT A LOWER, 




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          MIDDLE OR UPPER TERM FOR BOTH BASE TERM SENTENCES AND ENHANCEMENTS 
          BY EXERCISE OF THE COURT'S DISCRETION?


                                          



                                       PURPOSE

          The purpose of this bill is to extend the sunset provisions on 
          specified sentencing provisions to January 1, 2016.

           Existing law  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.  At least four days prior to the time 
          set for imposition of judgment, either party or the victim, or 
          the family of the victim if the victim is deceased, may submit a 
          statement in aggravation or mitigation.  In determining the 
          appropriate term, the court may consider the record in the case, 
          the probation officer's report, other reports including reports 
          received pursuant to Section 1203.03 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, and any further evidence introduced at the 
          sentencing hearing.  The court shall select the term which, in 
          the court's discretion, best serves the interests of justice.  
          The court shall set forth on the record the reasons for imposing 
          the term selected and the court may not impose an upper term by 
          using the fact of any enhancement upon which sentence is imposed 
          under any provision of law.  A term of imprisonment shall not be 
          specified if imposition of sentence is suspended.  

          This section, to the extent it was modified by SB 40 (Romero) to 
          address Cunningham v. California in 2007, sunsets on January 1, 
          2012.  (See Comment 2, infra.)  (Penal Code § 1170(b).)

           Existing law  provides that the Judicial Council shall seek to 




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          promote uniformity in sentencing under Section 1170, by:

                 The adoption of rules providing criteria for the 
               consideration of the trial judge at the time of sentencing 
               regarding the court's decision to:

                  o         grant or deny probation; 
                  o         impose the lower, middle, or upper prison 
                    term; 
                  o         impose concurrent or consecutive sentences; 
                    and
                  o         determine whether or not to impose an 
                    enhancement where that determination is permitted by 
                    law.

                 The adoption of rules standardizing the minimum content 
               and the sequential presentation of material in probation 
               officer reports submitted to the court.

          This section, to the extent it was modified by SB 40 (Romero) to 
          address Cunningham v. California in 2007, sunsets on January 1, 
          2012.  (See Comment 2, infra.)  (Penal Code § 1170.3.)

           Existing law  , in the form of the California Rules of Court, 
          provides that: 

                 When a sentence of imprisonment is imposed, or the 
               execution of a sentence of imprisonment is ordered 
               suspended, the sentencing judge must select the upper, 
               middle, or lower term on each count for which the defendant 
               has been convicted, as provided in section 1170(b) and 
               these rules. 

                 In exercising his or her discretion in selecting one of 
               the three authorized prison terms referred to in 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 




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               probation officer's report, other reports and statements 
               properly received, statements in aggravation or mitigation, 
               and any evidence introduced at the sentencing hearing.

                 To comply with section 1170(b), a fact charged and found 
               as an enhancement may be used as a reason for imposing the 
               upper term only if the court has discretion to strike the 
               punishment for the enhancement and does so.  The use of a 
               fact of an enhancement to impose the upper term of 
               imprisonment is an adequate reason for striking the 
               additional term of imprisonment, regardless of the effect 
               on the total term. 
          
                 A fact that is an element of the crime upon which 
               punishment is being imposed may not be used to impose a 
               greater term. 

                 The reasons for selecting one of the three authorized 
               prison terms referred to in section 1170(b) must be stated 
               orally on the record.  (Cal. Rule of Court, 4.420.)

           Existing case law  establishes that, contrary to the holding of 
          the California Supreme Court in People v. Black, 35 Cal.4th 1238 
          (2005), California's determinate sentencing law prior to the 
          enactment of SB 40 (Romero) (2007) violated the right of the 
          accused to a trial by jury, as guaranteed by the Sixth Amendment 
          to the United States Constitution.  (Cunningham v. California, 
          2007 U.S. LEXIS 1324 (U.S. 2007).)


           Existing case law  established that to adjust California's 
          sentencing law to make it conform to Constitutional 
          requirements, California may either require juries "to find any 
          fact necessary to the imposition of an elevated sentence" or 
          "permit judges genuinely 'to exercise broad discretion . . . 
          within a statutory range.'"  (Cunningham v. California, 2007 
          U.S. LEXIS 1324 (U.S. 2007).)

           Existing law  amended Penal Code sections 1170 and 1170.3, in 




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          response to the Cunningham decision, to make the choice of 
          lower, middle, or upper prison term one within the sound 
          discretion of the court.  (Senate Bill 40 (Romero) - Chapter 3, 
          Stats. of 2007.)  

           Existing law  includes the following legislative findings that 
          were adopted as part of SB 40 (2007): 

               It is the intent of the Legislature in enacting this 
               provision to respond to the decision of the United 
               States Supreme Court in Cunningham v. California, No. 
               05-6551, 2007 U.S. Lexis 1324.  It is the further 
               intent of the Legislature to maintain stability in 
               California's criminal justice system while the 
               criminal justice and sentencing structures in 
               California sentencing are being reviewed.

           Existing law  amending Penal Code sections 1170 and 1170.3 (SB 
          40) also included a "sunset" provision, declaring that it's 
          provisions would remain in effect only until January 1, 2009, 
          unless a later enacted statute, that is enacted before that 
          date, deletes or extends that date.  Subsequent legislation has 
          extended that sunset date and these provisions will currently 
          remain in effect until January 1, 2012.  

           Existing law  provides that certain sentencing enhancements carry 
          an additional penalty of a lower, middle, or upper term of 
          years.  These sections were amended in response to the 
          Cunningham decision, to make the choice of lower, middle, or 
          upper prison term one within the sound discretion of the court.  
          (SB 150 (Wright), Chap. 171, Stats. of 2009)  (Penal Code §§ 
          186.22, 186.33, 12021.5, 12022.2, 12022.3, 12022.4.)  SB 150 
          also included a "sunset" provision, declaring that it's 
          provisions would remain in effect only until January 1, 2011, 
          unless a later enacted statute, that is enacted before that 
          date, deletes or extends that date.  Last year that sunset date 
          was extended to January 1, 2012.  (AB 2263 (Yamada), Chap. 256, 
          Statutes of 2010.)





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           This bill  would extend the sunset dates in these sentencing 
          provisions to January 1, 2016.
                                          
                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION
          
          For the last several years, severe overcrowding in California's 
          prisons has been the focus of evolving and expensive litigation. 
           As these cases have progressed, prison conditions have 
          continued to be assailed, and the scrutiny of the federal courts 
          over California's prisons has intensified.  

          On June 30, 2005, in a class action lawsuit filed four years 
          earlier, the United States District Court for the Northern 
          District of California established a Receivership to take 
          control of the delivery of medical services to all California 
          state prisoners confined by the California Department of 
          Corrections and Rehabilitation ("CDCR").  In December of 2006, 
          plaintiffs in two federal lawsuits against CDCR sought a 
          court-ordered limit on the prison population pursuant to the 
          federal Prison Litigation Reform Act.  On January 12, 2010, a 
          three-judge federal panel issued an order requiring California 
          to reduce its inmate population to 137.5 percent of design 
          capacity -- a reduction at that time of roughly 40,000 inmates 
          -- within two years.  The court stayed implementation of its 
          ruling pending the state's appeal to the U.S. Supreme Court.  

          On Monday, June 14, 2010, the U.S. Supreme Court agreed to hear 
          the state's appeal of this order and, on Tuesday, November 30, 
          2010, the Court heard oral arguments.  A decision is expected as 
          early as this spring.  

          In response to the unresolved prison capacity crisis, in early 
          2007 the Senate Committee on Public Safety began holding 
          legislative proposals which could further exacerbate prison 
          overcrowding through new or expanded felony prosecutions.     

           This bill  does not appear to aggravate the prison overcrowding 
          crisis described above.





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                                      COMMENTS


         1.Need for This Bill
           
          According to the author:

               In 2007, the United States Supreme Court held that 
               California's determinate sentencing law violated a 
               defendant's right to a jury trial because the judge 
               was required to make factual findings in order to 
               justify imposing the maximum term of a sentencing 
               triad.  Cunningham v. California (2007) 549 US 270.  
               The Supreme Court suggested that this problem could be 
               corrected by either providing for a jury trial on the 
               sentencing issue or by giving the judge discretion to 
               impose the higher term without additional findings of 
               fact.

               SB 40 (Romero) of 2007 corrected the constitutional 
               problem by giving judges the discretion to impose a 
               minimum, medium or maximum term, without additional 
               finding of fact. SB 40's approached was embraced by 
               the California Supreme Court in People v. Sandoval 
               (2007) 41 Cal 4th 825, 843-852. SB 150 (Wright) 2009 
               extended this constitutional fix to sentence 
               enhancements. 

                     SB 576 would extend the sunset provision for SB 
                 40 & SB 150 from January 1, 2012 to January 16, 
                 2016.
                     There are no other changes to the laws other 
                 than the extension of the sunset provision.

          2.  Background: The Holding in Cunningham v. California: 
            California's Determinate Sentencing Law was Unconstitutional  

          Under California's determinate sentencing law (DSL), specified 




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          crimes may be punished by one of three prison terms, referred to 
          as the lower, middle, or upper term.  Prior to SB 40, Section 
          1170 stated that, ". . . when a judgment of imprisonment is to 
          be imposed and the statute specifies three possible terms, the 
          court shall order imposition of the middle term, unless there 
          are circumstances in aggravation or mitigation of the crime."  
          (Penal Code § 1170(b).)  Having established this system of 
          sentencing "triads," the Legislature delegated to the Judicial 
          Council the duty to adopt rules providing criteria to guide the 
          trial judge at the time of sentencing regarding the court's 
          decision to impose the lower, middle, or upper prison term.  
          (Penal Code § 1170.3.)  According to the rules of court 
          established by the Judicial Council prior to SB 40, in 
          sentencing a defendant under the DSL, "İt]he middle term must be 
          selected unless imposition of the upper or lower term is 
          justified by circumstances in aggravation or mitigation."  (Cal. 
          Rules of Court, Rule 4.420(a).)

          Prior to SB 40, the Rules of Court, Rule 4.420(b) further 
          required that, "İc]ircumstances in aggravation and mitigation 
          must be established by a preponderance of the evidence.  
          Selection of the upper term is justified only if, after a 
          consideration of all the relevant facts, the circumstances in 
          aggravation outweigh the circumstances in mitigation.  The 
          relevant facts are included in the case record, the probation 
          officer's report, other reports and statements properly 
          received, statements in aggravation or mitigation, and any 
          further evidence introduced at the sentencing hearing.  
          Selection of the lower term is justified only if, considering 
          the same facts, the circumstances in mitigation outweigh the 
          circumstances in aggravation."  

          In 2000, in the landmark ruling in Apprendi v. New Jersey, the 
          U.S. Supreme Court held that, "the Federal Constitution's 
          jury-trial guarantee proscribes a sentencing scheme that allows 
          a judge to impose a sentence above the statutory maximum based 
          on a fact, other than a prior conviction, not found by a jury or 
          admitted by the defendant."  (Cunningham v. California, 2007 
          U.S. LEXIS 1324, 11-12 (U.S. 2007), citing Apprendi v. New 




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          Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000); 
          Ring v. Arizona, 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 
          556 (2002); Blakely v. Washington, 542 U.S. 296, 124 S. Ct. 
          2531, 159 L. Ed. 2d 403 (2004); United States v. Booker, 543 
          U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).  The Supreme 
          Court clarified this principle in Blakely v. Washington as 
          follows:  "The relevant statutory maximum, is not the maximum 
          sentence a judge may impose after finding additional facts, but 
          the maximum he may impose without any additional findings."  
          Blakely, supra 542 U.S., at 303-304, 124 S. Ct. 2531, 159 L. Ed. 
          2d 403 (emphasis in original).  

          In finding that California's DSL, prior to SB 40, violated the 
          right to a trial by jury, as defined under Apprendi, the Supreme 
          Court stated, "California's DSL, and the rules governing its 
          application, direct the sentencing court to start with the 
          middle term, and to move from that term only when the court 
          itself finds and places on the record facts - whether related to 
          the offense or the offender - beyond the elements of the charged 
          offense."  (Cunningham v. California, 2007 U.S. LEXIS 1324 (U.S. 
          2007).)  Because, prior to SB 40, California's DSL required the 
          judge, in order to impose the upper term, to find facts that 
          were not elements of the offense found true by the jury, and 
          because the court could find those facts by a preponderance of 
          the evidence as opposed to the higher standard of beyond a 
          reasonable doubt, the DSL did exactly what was forbidden under 
          Apprendi, namely, it "allows a judge to impose a sentence above 
          the statutory maximum based on a fact, other than a prior 
          conviction, not found by a jury or admitted by the defendant."  
          (Apprendi, supra, 530 U.S. 466.)  "This Court has repeatedly 
          held that, under the Sixth Amendment, any fact that exposes a 
          defendant to a greater potential sentence must be found by a 
          jury, not a judge, and established beyond a reasonable doubt, 
          not merely by a preponderance of the evidence."  (Cunningham v. 
          California, 2007 U.S. LEXIS 1324 (U.S. 2007).)

          In sum, the Court held: "Because circumstances in aggravation 
          are found by the judge, not the jury, and need only be 
          established by a preponderance of the evidence, not beyond a 




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          reasonable doubt, . . . the DSL violates Apprendi's bright-line 
          rule: Except for a prior conviction, 'any fact that increases 
          the penalty for a crime beyond the prescribed statutory maximum 
          must be submitted to a jury, and proved beyond a reasonable 
          doubt.'"  (Cunningham v. California, 2007 U.S. LEXIS 1324 (U.S. 
          2007), citation omitted.)

          3.  SB 40 (2007) Amended California's DSL to Satisfy 
          Constitutional Requirements  

          While the Supreme Court, in its Cunningham decision, found that 
          California's DSL violates the Sixth Amendment, the Court also 
          provided clear direction as to what steps California's 
          Legislature could take to address the DSL's Constitutional 
          infirmities.

               As to the adjustment of California's sentencing 
               system in light of our decision, the ball . . . 
               lies in İCalifornia's] court.  We note that 
               several States have modified their systems in the 
               wake of Apprendi and Blakely to retain 
               determinate sentencing.  They have done so by 
               calling upon the jury - either at trial or in a 
               separate sentencing proceeding - to find any fact 
               necessary to the imposition of an elevated 
               sentence.  As earlier noted, California already 
               employs juries in this manner to determine 
               statutory sentencing enhancements.  Other States 
               have chosen to permit judges genuinely to 
               exercise broad discretion . . . within a 
               statutory range, which, everyone agrees, 
               encounters no Sixth Amendment shoal.  California 
               may follow the paths taken by its sister States 
               or otherwise alter its system, so long as the 
               State observes Sixth Amendment limitations 
               declared in this Court's decisions.  (Cunningham 
               v. California, 2007 U.S. LEXIS 1324 (U.S. 2007), 
               citations and footnotes omitted.)





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          Because, as the Court stated in Blakely, "The relevant 
          statutory maximum, is not the maximum sentence a judge may 
          impose after finding additional facts, but the maximum he may 
          impose without any additional findingsİ,]" and, because, prior 
          to SB 40, under California's DSL, a judge could only impose the 
          upper term after making additional findings of fact, the Court 
          in Cunningham found that, absent any amendment along the lines 
          stated above, the statutory maximum a judge would be authorized 
          to impose in California is the middle term.  (Cunningham v. 
          California, 2007 U.S. LEXIS 1324 (U.S. 2007).

          SB 40 amended California's DSL to give judges the discretion to 
          impose the lower, middle, or upper term without the need for 
          additional fact-finding.  In addition, SB 40 included 
          legislative intent language stating that its purpose was to 
          address Cunningham, and to stabilize the criminal justice 
          system while sentencing and correctional policies in California 
          are being reviewed.  



          4.  Sentence Enhancements Containing Three Possible Terms  
           
           Most sentence enhancements provide for a specific term of years. 
           (See e.g., Penal Code § 667(a) - 5 years for each prior serious 
          felony conviction.)  Some sentence enhancements, however, like 
          the base terms, provide that the court must select one of three 
          possible terms, a lower, middle or upper term.  (See e.g. Penal 
          Code § 12022.5(a), imposing a sentence enhancement of 3, 4 or 10 
          years for personally using a firearm in the commission of a 
          felony.)

          Section 1170.1(b) of the Penal Code 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."  Although in 




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          Cunningham, the Court found that sentence enhancements, per se, 
          in California, did not violate the right to have a jury decide 
          all facts that could increase the sentence, the Court did not 
          address the specific issue of those enhancements that carry a 
          choice of terms.  (See Cunningham v. California, 127 S. Ct. 856, 
          863 (2007).)  

          Since the enactment of SB 40, the California Court of Appeal has 
          found that section 1170.1 "suffers from the identical 
          constitutional infirmities identified by the United States 
          Supreme Court in Cunningham, supra, 549 U.S. 270 İ127 S. Ct. 
          856], and is similarly unconstitutional.  The Legislature has 
          taken no step to amend this provision to render it compliant 
          with the Sixth Amendment . . ."  People v. Lincoln, 157 Cal. 
          App. 4th 196, 205 (2007).  SB 150 (Wright), Chap. 171, Stats. of 
          2009, did just that.  SB 150 applied the same "fix" to sentence 
          enhancement triads that SB 40 applied to the base term triads: 
          It authorized the court to impose any of the three terms without 
          making any additional factual findings.  This approach was 
          expressly approved by the California Supreme Court in People v. 
          Sandoval, 41 Cal.4th 825, 844-845 (2007).

          5.  Sunset Provision  

          As described in Comment 3 above, SB 40, by its own terms, was 
          intended to maintain stability in California's criminal justice 
          system while the broader sentencing policy issues in California are 
          being reviewed.  SB 40 was introduced a few months after the 
          Governor declared a state of emergency as a result of prison 
          overcrowding.  (Prison Overcrowding State of Emergency 
          Proclamation, Proclamation by the Governor of the State of 
          California, October 4, 2006. http://gov.ca.gov/index.php 
          ?/proclamation/4278/.)  Despite the Governor's Proclamation, the 
          Legislature has not approved any significant changes to the way it 
          sentences criminal offenders.  The provisions of SB 40 originally 
          were due to sunset on January 1, 2009, but were later extended to 
          January 1, 2011 (SB 1701 (Romero) - Ch. 416, Stats. 2008).  SB 150 
          also included a sunset provision that corresponds to the date upon 
          which the provisions of SB 40 will also sunset.  




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          Last year the Legislature extended the sunset provisions on both SB 
          40 and SB 150 from their current sunset date of January 1, 2011 to 
          January 1, 2012.  (AB 2263 (Yamada), Chap. 256, Statutes of 2010.)  
          This bill would extend those sunset dates to January 1, 2016.

          SHOULD THIS SUNSET DATE BE EXTENDED?

          6.    Related Legislation 

          AB 520 (Ammiano) would provide 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. The bill would require 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, 
          the court relied upon to impose an upper term.  AB 520 is 
          currently pending in the Assembly Public Safety Committee and 
          has not yet been set for hearing.

          7.    Argument in Support  

          The Los Angeles District Attorney's office, which is the sponsor 
          of this bill, states:

               California's current sentencing procedures were 
               established by Senate Bill 40 (Romero) of 2001 and 
               Senate Bill 150 (Wright) of 2009.  This legislation 
               was in response to a United States Supreme Court 
               decision that held California's sentencing law to be 
               unconstitutional because the law at the time required 
               judges to make factual findings in order to impose a 
               maximum sentence.  Cunningham v. California (2007) 549 
               US 270.  The Supreme Court stated that the above 
               problem could be corrected either by providing for a 
               jury trial on the sentencing issue or by giving judges 
               the discretion to impose the higher prison term 
               without additional findings of fact.





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               SB 40 and SB 150 corrected the constitutional problem 
               by giving judge's discretion to impose a minimum, 
               medium, or maximum prison term, without additional 
               factual findings.  The approach to sentencing 
               established by this legislation was accepted and 
               embraced by the California Supreme Court in People v. 
               Sandoval (2007) 41 Cal.4th 843-52.

               California's current sentencing procedure works well 
               and is fair to defendants.  For the past four years, 
               judges have given minimum prison terms in 55% to 60% 
               of all cases.  Medium terms were ordered an additional 
               25% to 28% of the time.  Judges ordered Maximum prison 
               terms in only 12% to 17% of all cases.

               With the exception of death penalty cases, California 
               has always provided for a jury trial to determine if a 
               defendant is guilty or not of a crime.  Sentencing 
               decisions have always been made by judges.  This 
               system is not only fair but it saves money as a 
               separate jury trial for sentencing would require that 
               we hire additional prosecutors, public defenders and 
               judges.  California cannot afford that alternative at 
               a time when we are struggling to pay for basic 
               services.

               SB 576 simply maintains the current system by 
               extending the sunset on SB 40 (Romero) and SB 150 
               (Wright) to January 1, 2016. . . .

          8.    Argument in Opposition  

          The California Attorneys for Criminal Justice states:

               The United States Supreme Court offered several 
               avenues for California to follow in its quest to 
               comply with the Cunningham decision.  SB 40 is 
               essentially a hybrid version of our old statute and 
               one of the recommendations.  The Court noted that 




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               several other states adopted a "range" system that 
               does not run afoul of constitutional guarantees.  
               Under a range scenario, each offense has a 
               corresponding range of sentences, for example, 2-4 
               years in state prison.  A judge is permitted to impose 
               any sentence in between this range - 2 years, 2 years 
               6 months, 3 years 7 months, etc.  SB 40 fell short of 
               imposing a range.  Instead, it retained the triad 
               structure- a low, mid and upper term.  A judge may 
               impose either of these terms BUT NOTHING IN BETWEEN 
               these terms.  This is not a true range - it remains a 
               triad system which inherently lends itself to a 
               PRESUMPTION OF THE MIDDLE TERM.

               In fact, Judicial Council recently conceded that it 
               continues to train judges to follow the triad/presumed 
               mid-term scheme.  As such, upper terms are only handed 
               out when aggravating facts are taken into 
               consideration by the judge, and still not proven by 
               the jury - THIS IS IN DIRECT VIOLATION OF CUNNINGHAM.

               The most effective means to fix SB 40 is to require 
               the jury to hear all aggravating facts and permit the 
               jury to determine, beyond a reasonable doubt, which 
               facts are true.  Otherwise we are allowing individuals 
               to be sentenced to an upper term based on innuendo, 
               untruths, and outright lies.


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