BILL ANALYSIS Ó Senate Appropriations Committee Fiscal Summary Senator Christine Kehoe, Chair SB 576 (Calderon) Hearing Date: 5/2/2011 Amended: As Introduced Consultant: Jolie Onodera Policy Vote: Public Safety 7-0 _________________________________________________________________ ____ BILL SUMMARY: SB 576 would extend the sunset date on specified sentencing provisions to January 1, 2016, allowing courts to select a lower, middle, or upper term for both base term sentences and enhancements by exercise of the court's discretion. _________________________________________________________________ ____ Fiscal Impact (in thousands) Major Provisions 2011-12 2012-13 2013-14 Fund Base sentence discretion Unknown; potentially major costs or savings General Enhancement discretion Unknown; potentially major costs or savings General _________________________________________________________________ ____ STAFF COMMENTS: This bill meets the criteria for referral to the Suspense File. SB 576 would extend the sunset of provisions enacted by SB 40 (Romero) 2007 and SB 150 (Wright) 2009 that sought to conform the state's determinate sentencing law to the findings in Cunningham v. California, 549 U.S. 270 (2007). The Cunningham decision found a portion of California's determinate sentencing laws unconstitutional, on the grounds that they violated an individual's right to a jury trial. Both the base sentencing and enhancement provisions were most recently extended under AB 2263 (Yamada) 2010 to January 1, 2012. The former version of the state's basic determinate sentencing statute provided that, for crimes punishable by three possible terms, the court had to impose the middle term of imprisonment unless it found circumstances in aggravation or mitigation. If the court found that there were aggravating or mitigating circumstances, it could impose an upper or lower term. However, in 2007, the U.S. Supreme Court held upper term sentencing, under California's determinate sentencing law, invalid under the Sixth Amendment. In Blakely v. Washington, 542 U.S. 296 (2004), the U.S. Supreme Court held in order to comport with the Sixth Amendment, any fact (other than a prior SB 576 (Calderon) Page 3 conviction) that exposes a defendant to a sentence beyond the relevant statutory maximum must be found by a jury beyond a reasonable doubt or admitted by the defendant. Subsequently, in the Cunningham decision, the U.S. Supreme Court held that California's determinate sentencing law violated Blakely because the middle term was the statutory maximum for the crime, but the law allowed the court to impose the upper term based on circumstances in aggravation found by the court by a preponderance of the evidence. In light of Cunningham, the Legislature amended Penal Code section 1170(b) to fix the constitutional defect inherent in the statute with regard to the term imposed for the crime. Accordingly, under current law, the court is afforded discretion to choose the appropriate term, based on the interest of justice, from the three-term range provided as punishment for the crime. Since the middle term is no longer the presumptive term of imprisonment, the defendant has no right to a jury trial, with proof beyond a reasonable doubt, on circumstances in aggravation that would support the imposition of the upper term. SB 150 (Wright) addressed the same constitutional issue for sentence enhancements, some of which are punishable by three possible terms. It deleted the requirement that the court impose the middle term unless it found circumstances in aggravation or mitigation and instead provided that the choice of term will be within the court's discretion, when a sentence enhancement called for the court to select either a lower, middle, or upper term. The fiscal impact of extending the provisions is unclear because the costs are determined by the behavior and decisions of individual judges in sentencing hearings. This bill poses potentially significant annual General Fund costs, for increased state prison terms to the extent that more offenders receive aggravated enhancement terms than the current presumptive middle term. In the absence of a sunset extension, the court would no longer be able to go above the middle term of a base sentence or an enhancement. By giving judges this discretion, there is a potential for increased incarceration time, which is a cost to SB 576 (Calderon) Page 4 the General Fund in future years. This bill also, however, gives judges the authority to impose the lower limit of enhancement. Even a minor change in the number of offenders deviating from the middle term would drive significant costs or savings, given the large base of offenders. It is estimated that 60,000 offenders will receive determinate prison sentences in Fiscal Year 2010-11. A one-percent increase in upper term sentences represents approximately 600 cases. Assuming an additional two years per upper term sentence would cost an additional $30 million. This bill could result in costs incurred in 2012, but those additional costs would not be paid until after the middle term is served of the sentence, the enhancement, or both.