BILL ANALYSIS                                                                                                                                                                                                    




                   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
          
















































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          ____
          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.
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          ____
                            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)
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          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.