BILL ANALYSIS                                                                                                                                                                                                    



                                                                  SB 576
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          SENATE THIRD READING
          SB 576 (Ron Calderon)
          As Amended  August 30, 2011
          2/3 vote.  Urgency

           SENATE VOTE  :40-0  
           
           PUBLIC SAFETY       7-0         APPROPRIATIONS      17-0        
           
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          |Ayes:|Ammiano, Knight, Cedillo, |Ayes:|Fuentes, Harkey,          |
          |     |Hagman, Hill, Mitchell,   |     |Blumenfield, Bradford,    |
          |     |Skinner                   |     |Charles Calderon, Campos, |
          |     |                          |     |Davis, Donnelly, Gatto,   |
          |     |                          |     |Hall, Hill, Lara,         |
          |     |                          |     |Mitchell Nielsen, Norby,  |
          |     |                          |     |Solorio, Wagner           |
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           SUMMARY  :   Extends provisions of law relating to criminal 
          sentencing, and corrects an inadvertent drafting error in the 
          "one strike" sex law.  Specifically,  this bill  :  

          1)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.

          2)Restores the penalty of 15-years-to-life under the "one 
            strike" sex law for great bodily injury committed during the 
            course of a rape in concert which was inadvertently deleted in 
            a prior legislative session as a result of a drafting error. 

          3)Makes other conforming changes.

           EXISTING LAW  :

          1)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.  








                                                                  SB 576
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          2)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.  

          3)Provides that sentencing choices requiring a statement of a 
            reason include "s]electing one of the three authorized prison 
            terms referred to in Penal Code Section 1170(b) for either an 
            offense or an enhancement."  

          4)Requires the sentencing judge to consider relevant criteria 
            enumerated in the Rules of Court.

          5)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."  

          6)Enumerates circumstances in aggravation, relating both to the 
            crime and to the defendant, as specified. 

          7)Enumerates circumstances in mitigation, relating both to the 
            crime and to the defendant, as specified.  

          8)Provides a "one-strike" sex law which states that if a 
            qualifying sex offense is committed and one or more enumerated 
            aggravating circumstances are found to be present, the 
            mandatory punishment is an indeterminate term of either 
            25-years-to-life or 15-years-to-life, depending on the number 
            and type of enumerated aggravating factors present.

           FISCAL EFFECT  :   According to the Assembly Appropriations 
          Committee, unknown annual General Fund 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).








                                                                  SB 576
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          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. 

           COMMENTS  :   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 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."

          Please see the policy committee analysis for a full discussion 
          of this bill.
           

          Analysis Prepared by  :    Sandy Uribe / PUB. S. / (916) 319-3744 
                                                                FN: 0002266