BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                  SB 576
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          Date of Hearing:  June 21, 2011
          Counsel:       Sandy Uribe


                         ASSEMBLY COMMITTEE ON PUBLIC SAFETY
                                 Tom Ammiano, Chair

                SB 576 (Calderon) - As Introduced:  February 17, 2011
                       As Proposed to be Amended in Committee
           
           
           SUMMARY  :  Extends the sunset date from January 1, 2012 to 
          January 1, 2014 for provisions of law which provide that the 
          court shall, in its discretion, impose the term or enhancement 
          that best serves the interest of justice, as required by SB 40 
          (Romero), Chapter 40, Statutes of 2007; SB 150 (Wright), Chapter 
          171, Statutes of 2009; and Cunningham vs. California (2007) 549 
          U.S. 270.  Makes other conforming changes. 

           EXISTING LAW  :

          1)States the Legislature finds and declares that the purpose of 
            imprisonment for crime is punishment.  This purpose is best 
            served by terms proportionate to the seriousness of the 
            offense with provision for uniformity in the sentences of 
            offenders committing the same offense under similar 
            circumstances.  The Legislature further finds and declares 
            that the elimination of disparity and the provision of 
            uniformity of sentences can best be achieved by determinate 
            sentences fixed by statute in proportion to the seriousness of 
            the offense as determined by the Legislature to be imposed by 
            the court with specified discretion.  İPenal Code Section 
            1170(a)(1).]

          2)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.  İPenal Code Section 1170(b).]  

          3)Provides that when a sentencing enhancement specifies three 
            possible terms, the choice of the appropriate term shall rest 
            within the sound discretion of the court.  İPenal Code Section 
            1170.1(d).]

          4)Provides that sentencing choices requiring a statement of a 








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            reason include "İs]electing one of the three authorized prison 
            terms referred to in Penal Code Section 1170(b) for either an 
            offense or an enhancement."  İCalifornia Rules of Court, Rule 
            4.406(b)(4).]

          5)Requires the sentencing judge to consider relevant criteria 
            enumerated in the Rules of Court. (California Rules of Court, 
            Rule 4.409.)

          6)Provides that, in exercising discretion to select one of the 
            three authorized prison terms referred to in Penal Code 
            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 probation officer's report, other reports and statements 
            properly received, statements in aggravation or mitigation, 
            and any evidence introduced at the sentencing hearing."  
            İCalifornia Rules of Court, Rule 4.420(b).]

          7)Prohibits the sentencing court from using a fact charged and 
            found as an enhancement as a reason for imposing the upper 
            term unless the court exercises its discretion to strike the 
            punishment for the enhancement.  İCalifornia Rules of Court, 
            Rule 4.420(c).]

          8)Prohibits the sentencing court from using a fact that is an 
            element of the crime to impose a greater term.  İCalifornia 
            Rules of Court, Rule 4.420(d).]

          9)Enumerates circumstances in aggravation, relating both to the 
            crime and to the defendant, as specified. (California Rules of 
            Court, Rule 4.421.)

          10)Enumerates circumstances in mitigation, relating both to the 
            crime and to the defendant, as specified.  (California Rules 
            of Court, Rule 4.423.)

           FISCAL EFFECT  :   Unknown

           COMMENTS  :   

           1)Author's Statement  :  According to the author," SB 576 simply 
            extends the sunset on California's current sentencing law to 
            January 1, 2016 California's current sentencing procedures 








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            were established by Senate Bill 40 (Romero) of 2007 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 that 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 by either 
            providing for a jury trial on the sentencing issue or by 
            giving the judge discretion to impose the higher prison 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. 

          "For the past four years judges have given the 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 
            prisons terms only 12% to 17% of all cases California's 
            current sentencing procedures works well and is fair to 
            defendants."

           2)Background:   The Sixth Amendment right to a jury applies to 
            any factual finding, other than that of a prior conviction, 
            necessary to warrant any sentence beyond the presumptive 
            maximum.  İApprendi v. New Jersey (2000) 530 U.S. 466, 490; 
            Blakely v. Washington (2004) 524 U.S. 296, 301, 303-04.]  

          In Cunningham v. California (2007) 549 U.S. 270, the United 
            States Supreme Court held California's Determinate Sentencing 
            Law (DSL) violated a defendant's right to trial by jury by 
            placing sentence-elevating fact finding within the judge's 
            province.  (Id. at p. 274.)  The DSL authorized the court to 
            increase the defendant's sentence by finding facts not 
            reflected in the jury verdict.  Specifically, the trial judge 
            could find factors in aggravation by a preponderance of 
            evidence to increase the offender's sentence from the 
            presumptive middle term to the upper term and, as such, was 
            constitutionally flawed.  The Court stated, "Because the DSL 
            authorizes the judge, not the jury, to find the facts 
            permitting an upper term sentence, the sentence cannot 
            withstand measurement against our Sixth Amendment precedent."  
            (Id. at p. 293.)   









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          The Supreme Court provided direction as to what steps the 
            Legislature could take to address the constitutional 
            infirmities of the DSL:

          "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, supra, 549 U.S. at pp. 293-294.)

          Following Cunningham, the Legislature amended the DSL, 
            specifically Penal Code Sections 1170 and 1170.1, to make the 
            choice of  lower, middle, or upper prison term one within the 
            sound discretion of the court.  İSee SB 40 (Romero), Chapter 
            3, Statutes of 2007.]  This approach was embraced by the 
            California Supreme Court in People v. Sandoval (2007) 41 
            Cal.4th 825, 843-852.  The new procedure removes the mandatory 
            middle term and the requirement of weighing aggravation 
            against mitigation before imposition of the upper term.  Now, 
            the sentencing court is permitted to impose any of the three 
            terms in its discretion, and need only state reasons for the 
            decision so that it will be subject to appellate review for 
            abuse of discretion.   (Id. at pp. 843, 847.)

           3)Sunset Provision  :  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.  Thus, 
            SB 40, by its own terms, was intended to be a temporary 
            measure.

          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, 








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            Proclamation by the Governor of the State of California, 
            October 4, 2006.   .)  Despite the 
            Governor's Proclamation, the Legislature has not approved any 
            significant changes to the way criminal offenders are 
            sentenced.  The provisions of SB 40 originally were due to 
            sunset on January 1, 2009, but were later extended to January 
            1, 2011.  İSB 1701 (Romero), Chapter 416, Statutes of 2008.]  
            SB 150 also included a sunset provision that corresponds to 
            the date upon which the provisions of SB 40 will also sunset.  


          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.  İAB 2263 (Yamada), 
            Chapter 256, Statutes of 2010.]  This bill extends those 
            sunset dates to January 1, 2014.

           4)Is the Current Method Still Constitutionally Infirm  ?  Perhaps 
            the most important sentencing label that must be scrutinized 
            in assessing a sentencing determination for Apprendi/Blakely 
            error is "judicial discretion." The Supreme Court stated in 
            Apprendi that it was not eliminating judicial discretion over 
            sentencing.  (Apprendi, supra, 530 U.S. at p. 482.)  However, 
            in Blakely, the Court also held that the exercise of judicial 
            discretion is unconstitutional if it relies on a fact not 
            found true by the jury, in whose absence the state's 
            sentencing laws would require a lower sentence.  (Blakely, 
            supra, 124 S.Ct. at pp. 2537-2538.)  Simply because a state's 
            sentencing laws say that they are giving a judge discretion, 
            even broad discretion, to make a particular determination 
            affecting the defendant's sentence does not mean that the 
            exercise of that discretion is immune from a Blakely 
            challenge.  Unless the state has given the sentencing court 
            unfettered discretion to do whatever it wants to in making a 
            particular determination that affects the defendant's 
            sentence, the exercise of that discretion will potentially be 
            susceptible to a Blakely challenge.

          The United States Supreme 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, supra, 549 U.S. at 281.)  Because Penal Code 








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            Section 1170, as reformed by SB 40 and by the California 
            Supreme Court in Sandoval, supra, 41 Cal.4th 825, continues to 
            require judicial fact finding as a predicate to the imposition 
            of an aggravated term, it arguably violates the Sixth 
            Amendment.

            If Penal Code Section 1170 allowed judges unfettered 
            discretion to impose the upper, middle, or lower terms, the 
            statute would have fixed the Sixth Amendment infirmity in the 
            DSL.  İCf. United States v. Booker (2005) 543 U.S. 220.]  
            Thus, if a trial judge were allowed to impose the upper term 
            without a single, additional aggravating fact, then that would 
            comport with the requirements of the Sixth Amendment.  But 
            under the language of current Penal Code Section 1170 enacted 
            by SB 40 and adopted by the California Supreme Court in 
            reforming the prior version of the statute,  that is not 
            permitted.

            As adopted by the California Supreme Court, the language of SB 
            40 requires the judge to enter "reasons" supporting the 
            exercise of his or her sentencing discretion in the record.  
            İPeople v. Sandoval, supra, 41 Cal.4th at p. 844, Penal Code 
            Section 1170(b).]  Those reasons remain governed by the 
            California Rules of Court.  İPeople v. Sandoval, supra, 41 
            Cal.4th at 844; Penal Code Section 1170.3(a)(2).]  And under 
            the Rules of Court, it remains the case that "İa] fact that is 
            an element of the crime may not be used to impose a greater 
            term."  İCal. Rules of Court, Rule 4.420(d).]  Similarly, 
            Penal Code Section 1170(b) continues to provide, after 
            amendment and after reformation by the California Supreme 
            Court, that "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." 

            The import of these rules is that without finding facts in 
            addition to the elements of the offense, which is to say in 
            addition to the facts found by the jury, the court may not 
            impose the upper term.  And the terms of California Rules of 
            Court, Rule 4.420(d) are mandatory, not discretionary.  If the 
            court has before it no more than the facts found by the jury, 
            to wit the elements of the offense, the court "may not impose 
            a greater term."  İCal. Rules of Court, Rule 4.420(d).]

            That facts must support a sentence under Penal Code Section 
            1170 as reformed by the California Supreme Court is also 








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            apparent from the requirement that sentences are reviewed for 
            abuse of discretion.  (People v. Sandoval, supra, 41 Cal.4th 
            at 847.)  

            It really does not matter that these factors are now called 
            "reasons" rather than "facts."  "If a State makes an increase 
            in a defendant's authorized punishment contingent on the 
            finding of a fact, that fact - no matter how the State labels 
            it - must be found by a jury beyond a reasonable doubt." . . . 
             "İT]he characterization of a fact or circumstance as an 
            'element' or a 'sentencing factor' is not determinative of the 
            question 'who decides,' judge or jury, . . . . " (United 
            States v. Booker, supra, 543 U.S. at 231.)

            The Rules of Court, which lay out the permissible bases for 
            trial courts to impose an upper or lower term, have not 
            changed.  Since under reformed Penal Code Section 1170, it is 
            still the case that an upper-term sentence must be based on 
            the Rules of Court, arguably it still violates a defendant's 
            Sixth Amendment rights.

           5)Arguments in Support  :  According to the  Los Angeles County 
            District Attorney's Office  , the sponsor of this bill, 
            "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 guilty 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."

           6)Related Legislation  :  AB 520 (Ammiano) extends the sunset date 
            from January 1, 2012 to January 1, 2013 for the same 
            provisions of law.  AB 520 is pending referral by the Senate 
            Rules Committee.

           7)Prior Legislation  :  








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             a)   SB 40 (Romero), Chapter 3, Statutes of 2007, amended 
               California's DSL to eliminate the presumption for the 
               middle term and to state that where a court may impose a 
               lower, middle or upper term in sentencing a defendant, the 
               choice of appropriate term shall be left to the discretion 
               of the court.

             b)   SB 1701 (Romero), Chapter 416, Statutes of 2008, 
               extended to January1, 2011, the provisions of SB 40 which 
               were originally due to sunset on January 1, 2009.

             c)   SB 150 (Wright), Chapter 171, Statutes of 2009, 
               eliminated the presumption of the middle term relating to 
               sentencing enhancements found in Penal Code Section 
               1170.1(d).

             d)   AB 2263 (Yamada), Chapter 256, Statutes of 2010, 
               extended to January 1, 2012 provisions of law that provide 
               that the court shall, in its discretion, impose the term or 
               enhancement that best serves the interest of justice.

           REGISTERED SUPPORT / OPPOSITION  :   

           Support 
           
          Los Angeles County District Attorney's Office (Sponsor)
          California District Attorneys Association
          California State Sheriffs' Association
          Peace Officers Research Association of California

           Opposition 
           
          None
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744