BILL ANALYSIS                                                                                                                                                                                                    Ó

                                                                  SB 576
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          Date of Hearing:   July 6, 2011

                                Felipe Fuentes, Chair

                   SB 576 (Calderon) - As Amended:  June 28, 2011 

          Policy Committee:                              Public Safety 
          Vote:        7-0 

          Urgency:     No                   State Mandated Local Program: 
          No     Reimbursable:               


          This bill addresses the constitutional infirmity of the state's 
          three-tier determinate sentencing law (DSL), pursuant to 
          Cunningham vs. California (2007), by extending the sunset date 
          from January 1, 2012 to January 1, 2014 on provisions of law 
          (the Cunningham fix) that require the court to use its 
          discretion to impose the term or enhancement that best serves 
          the interest of justice, as required by SB 40 (Romero) and 
          subsequent extensions.   

           FISCAL EFFECT
          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 2010, the number of 
          upper terms per the number of determinate sentences increased 
          slightly, from about 15% to about 17%. These figures appear to 
          belie the contention of some that current law, which this bill 
          extends, results in significantly more upper-term sentences. 


           1)Rationale.  This bill extends the current Cunningham fix from 
            January 2012 to January 2016.  


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            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 
            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.

           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)Support  . According to the L.A. District Attorney's Office, the 
            sponsor of this bill, "California's current sentencing 
            procedure works well and is fair to defendants.  For the past 


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            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."

           4)Opposition  .  According to the California Attorneys for 
            Criminal Justice (CACJ), "The 'SB 40' component impacts nearly 
            every felony case in California. As currently in effect, this 
            approach compromises constitutional protections and exposes 
            individuals to an 'upper term' sentence even in the absence of 
            aggravating factors. CACJ believes this approach contradicts 
            California's stated goal of proportionate sentencing and runs 
            afoul of the right to a jury. SB 40 is becoming unworkable.  
            Judges are quietly following the old sentencing rules, or are 
            violating the United States Supreme Court decision in 
            Cunningham by relying on unproven facts to impose an upper 
            term. CACJ members are beginning to win motions at the trial 
            court level and having sentences overturned because judges are 
            unable to comply with SB 40 without violating other 
            protections.  It is time for this 'temporary' law to sunset 
            and Ŭa] more constitutionally compliant structure Ŭto] be 

           5)Related Legislation  :  AB 520 (Ammiano), sponsored by CACJ, as 
            introduced required aggravating sentencing factors to be pled 
            and proved. AB 520 was amended to simply extend the Cunningham 
            fix to January 1, 2013 and is pending in the Senate. 

           Analysis Prepared by  :    Geoff Long / APPR. / (916) 319-2081