BILL ANALYSIS                                                                                                                                                                                                    Ó



                                                                      



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          |SENATE RULES COMMITTEE            |                   SB 576|
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                              UNFINISHED BUSINESS


          Bill No:  SB 576
          Author:   Calderon (D)
          Amended:  9/8/11
          Vote:     27

           
           SENATE PUBLIC SAFETY COMMITTEE  :  7-0, 4/5/11
          AYES:  Hancock, Anderson, Calderon, Harman, Liu, Price, 
            Steinberg

           SENATE APPROPRIATIONS COMMITTEE  :  9-0, 5/26/11
          AYES:  Kehoe, Walters, Alquist, Emmerson, Lieu, Pavley, 
            Price, Runner, Steinberg

           SENATE FLOOR  :  40-0, 6/1/11
          AYES:  Alquist, Anderson, Berryhill, Blakeslee, Calderon, 
            Cannella, Corbett, Correa, De León, DeSaulnier, Dutton, 
            Emmerson, Evans, Fuller, Gaines, Hancock, Harman, 
            Hernandez, Huff, Kehoe, La Malfa, Leno, Lieu, Liu, 
            Lowenthal, Negrete McLeod, Padilla, Pavley, Price, Rubio, 
            Runner, Simitian, Steinberg, Strickland, Vargas, Walters, 
            Wolk, Wright, Wyland, Yee

           ASSEMBLY FLOOR  :  Not available


           SUBJECT  :    Sentencing:  choice of terms

           SOURCE  :     Los Angeles District Attorney


           DIGEST  :    This bill extends the sunset date on specified 
          sentencing provisions from January 1, 2012 to January 1, 
                                                           CONTINUED





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          2014, allowing courts to select a lower, middle, or upper 
          term for both base term sentences and enhancements by 
          exercise of the court's discretion.

           Assembly Amendments  (1) shorten the extension of the sunset 
          date from January 1, 2016 to January 1, 2014; (2) restore 
          the penalty of 15-years-tlife 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; 
          and (3) add double-jointing language. 

           ANALYSIS  :    Existing law 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.  At 
          least four days prior to the time set for imposition of 
          judgment, either party or the victim, or the family of the 
          victim if the victim is deceased, may submit a statement in 
          aggravation or mitigation.  In determining the appropriate 
          term, the court may consider the record in the case, the 
          probation officer's report, other reports including reports 
          received pursuant to Section 1203.03 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, and any further evidence introduced 
          at the sentencing hearing.  The court shall select the term 
          which, in the court's discretion, best serves the interests 
          of justice.  The court shall set forth on the record the 
          reasons for imposing the term selected and 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.  A term of imprisonment shall not be 
          specified if imposition of sentence is suspended.  

          This section, to the extent it was modified by SB 40 
          (Romero), Chapter 3, Statutes of 2007, to address 
           Cunningham v. California  in 2007, sunsets on January 1, 
          2012.  (Penal Code Section 1170(b).)

          Existing law provides that the Judicial Council shall seek 
          to promote uniformity in sentencing under Section 1170, by:

           The adoption of rules providing criteria for the 







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            consideration of the trial judge at the time of 
            sentencing regarding the court's decision to:

          § grant or deny probation. 
          § impose the lower, middle, or upper prison term.
          § impose concurrent or consecutive sentences.
          § determine whether or not to impose an enhancement where 
            that 
          § determination is permitted by law.

           The adoption of rules standardizing the minimum content 
            and the sequential presentation of material in probation 
            officer reports submitted to the court.

           This section, to the extent it was modified by SB 40 
            (Romero) to address Cunningham v. California in 2007, 
            sunsets on January 1, 2012.  (Penal Code Section 1170.3.)

          Existing law, in the form of the California Rules of Court, 
          provides that: 

           When a sentence of imprisonment is imposed, or the 
            execution of a sentence of imprisonment is ordered 
            suspended, the sentencing judge must select the upper, 
            middle, or lower term on each count for which the 
            defendant has been convicted, as provided in section 
            1170(b) and these rules. 

           In exercising his or her discretion in selecting one of 
            the three authorized prison terms referred to in 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. 

           To comply with section 1170(b), a fact charged and found 
            as an enhancement may be used as a reason for imposing 
            the upper term only if the court has discretion to strike 
            the punishment for the enhancement and does so.  The use 
            of a fact of an enhancement to impose the upper term of 







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            imprisonment is an adequate reason for striking the 
            additional term of imprisonment, regardless of the effect 
            on the total term. 

           A fact that is an element of the crime upon which 
            punishment is being imposed may not be used to impose a 
            greater term. 

           The reasons for selecting one of the three authorized 
            prison terms referred to in section 1170(b) must be 
            stated orally on the record.  (Cal. Rule of Court, 
            4.420.)

          Existing case law establishes that, contrary to the holding 
          of the  California Supreme Court in People v. Black  , 35 
          Cal.4th 1238 (2005), California's determinate sentencing 
          law prior to the enactment of SB 40 (Romero), violated the 
          right of the accused to a trial by jury, as guaranteed by 
          the Sixth Amendment to the United States Constitution.  
          (  Cunningham v. California  , 2007 U.S. LEXIS 1324 (U.S. 
          2007).)

          Existing case law established that to adjust California's 
          sentencing law to make it conform to Constitutional 
          requirements, California may either require juries "to find 
          any fact necessary to the imposition of an elevated 
          sentence" or "permit judges genuinely 'to exercise broad 
          discretion . . . within a statutory range.'"  (  Cunningham 
          v. California  , 2007 U.S. LEXIS 1324 (U.S. 2007).)

          Existing law amended Penal Code sections 1170 and 1170.3, 
          in response to the Cunningham decision, to make the choice 
          of lower, middle, or upper prison term one within the sound 
          discretion of the court.
           
          Existing law includes the following legislative findings 
          that were adopted as part of SB 40: 

              It is the intent of the Legislature in enacting this 
              provision to respond to the decision of the United 
              States Supreme Court in Cunningham v. California, No. 
              05-6551, 2007 U.S. Lexis 1324.  It is the further 
              intent of the Legislature to maintain stability in 
              California's criminal justice system while the 







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              criminal justice and sentencing structures in 
              California sentencing are being reviewed.

          Existing law amending Penal Code sections 1170 and 1170.3 
          (SB 40) also included a "sunset" provision, declaring that 
          it's provisions would remain in effect only until January 
          1, 2009, unless a later enacted statute, that is enacted 
          before that date, deletes or extends that date.  Subsequent 
          legislation has extended that sunset date and these 
          provisions will currently remain in effect until January 1, 
          2012.
            
          Existing law provides that certain sentencing enhancements 
          carry an additional penalty of a lower, middle, or upper 
          term of years.  These sections were amended in response to 
          the Cunningham decision, to make the choice of lower, 
          middle, or upper prison term one within the sound 
          discretion of the court.  (SB 150 (Wright), Chapter 171, 
          Statutes of 2009)  (Penal Code Sections 186.22, 186.33, 
          12021.5, 12022.2, 12022.3, 12022.4.)  SB 150 also included 
          a "sunset" provision, declaring that it's provisions would 
          remain in effect only until January 1, 2011, unless a later 
          enacted statute, that is enacted before that date, deletes 
          or extends that date.  Last year that sunset date was 
          extended to January 1, 2012.  (AB 2263 İYamada], Chapter 
          256, Statutes of 2010.)

          This bill is double-jointed to AB 17 (Assembly Budget 
          Committee) and SB 5 (Harman) as it pertains to Section 1170 
          of the Penal Code.

          This bill extends the sunset dates in these sentencing 
          provisions to January 1, 2014.

          Existing law, as amended by Proposition 83, the Sexual 
          Predator Punishment and Control Act (Jessica's Law), 
          approved by the voters at the November 7, 2006, statewide 
          general election, provides that a defendant shall be 
          punished by imprisonment in the state prison for 25 years 
          to life if convicted of rape, sodomy, or oral copulation 
          and if, among other things, in the commission of that 
          offense any person kidnapped the victim, tortured the 
          victim, or committed the offense during the commission of a 
          burglary, as specified.  Existing law further provides that 







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          a defendant shall be punished by imprisonment in the state 
          prison for 15 years to life if convicted of rape, sodomy, 
          or oral copulation and if, among other things, in the 
          commission of that offense any person, except as specified 
          in the provisions above, kidnapped the victim, committed 
          the offense during the commission of a burglary, used a 
          dangerous or deadly weapon in the commission of the 
          offense, or under other specified circumstances.  
          Proposition 83 provides that the Legislature may amend the 
          provisions of the act to expand the scope of its 
          application or increase the punishment or penalties by a 
          statute passed by a majority vote of each house.

          This bill additionally includes the infliction of great 
          bodily injury on the victim or another person among that 
          list of circumstances that if committed by any person in 
          the commission by the defendant of rape, sodomy, or oral 
          copulation would subject the defendant to imprisonment in 
          the state prison for 15 years to life.  The bill includes 
          related findings and declarations.  Because the bill 
          changes the penalty for a crime, it imposes a 
          state-mandated local program.

           Background
           
           The Holding in Cunningham v. California: California's 
          Determinate Sentencing Law was Unconstitutional  .  Under 
          California's determinate sentencing law (DSL), specified 
          crimes may be punished by one of three prison terms, 
          referred to as the lower, middle, or upper term.  Prior to 
          SB 40, Section 1170 stated that, ". . . when a judgment of 
          imprisonment is to be imposed and the statute specifies 
          three possible terms, the court shall order imposition of 
          the middle term, unless there are circumstances in 
          aggravation or mitigation of the crime."  (Penal Code 
          Section 1170(b).)  Having established this system of 
          sentencing "triads," the Legislature delegated to the 
          Judicial Council the duty to adopt rules providing criteria 
          to guide the trial judge at the time of sentencing 
          regarding the court's decision to impose the lower, middle, 
          or upper prison term.  (Penal Code Section 1170.3.)  
          According to the rules of court established by the Judicial 
          Council prior to SB 40, in sentencing a defendant under the 
          DSL, "İt]he middle term must be selected unless imposition 







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          of the upper or lower term is justified by circumstances in 
          aggravation or mitigation."  (Cal. Rules of Court, Rule 
          4.420(a).)

          Prior to SB 40, the Rules of Court, Rule 4.420(b) further 
          required that, "İc]ircumstances in aggravation and 
          mitigation must be established by a preponderance of the 
          evidence.  Selection of the upper term is justified only 
          if, after a consideration of all the relevant facts, the 
          circumstances in aggravation outweigh the circumstances in 
          mitigation.  The relevant facts are included in the case 
          record, the probation officer's report, other reports and 
          statements properly received, statements in aggravation or 
          mitigation, and any further evidence introduced at the 
          sentencing hearing.  Selection of the lower term is 
          justified only if, considering the same facts, the 
          circumstances in mitigation outweigh the circumstances in 
          aggravation."  

          In 2000, in the landmark ruling in  Apprendi v. New Jersey  , 
          the U.S. Supreme Court held that, "the Federal 
          Constitution's jury-trial guarantee proscribes a sentencing 
          scheme that allows a judge to impose a sentence above the 
          statutory maximum based on a fact, other than a prior 
          conviction, not found by a jury or admitted by the 
          defendant."  (  Cunningham v. California  , 2007 U.S. LEXIS 
          1324, 11-12 (U.S. 2007), citing  Apprendi v. New Jersey  , 530 
          U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000);  Ring 
          v. Arizona  , 536 U.S. 584, 122 S. Ct. 2428, 153 L. Ed. 2d 
          556 (2002);  Blakely v. Washington  , 542 U.S. 296, 124 S. Ct. 
          2531, 159 L. Ed. 2d 403 (2004);  United States v. Booker  , 
          543 U.S. 220, 125 S. Ct. 738, 160 L. Ed. 2d 621 (2005).  
          The Supreme Court clarified this principle in  Blakely v. 
          Washington  as follows:  "The relevant statutory maximum, is 
          not the maximum sentence a judge may impose after finding 
          additional facts, but the maximum he may impose without any 
          additional findings."  Blakely, supra 542 U.S., at 303-304, 
          124 S. Ct. 2531, 159 L. Ed. 2d 403 (emphasis in original).  


          In finding that California's DSL, prior to SB 40, violated 
          the right to a trial by jury, as defined under Apprendi, 
          the Supreme Court stated, "California's DSL, and the rules 
          governing its application, direct the sentencing court to 







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          start with the middle term, and to move from that term only 
          when the court itself finds and places on the record facts 
          - whether related to the offense or the offender - beyond 
          the elements of the charged offense."  (  Cunningham v. 
          California  , 2007 U.S. LEXIS 1324 (U.S. 2007).)  Because, 
          prior to SB 40, California's DSL required the judge, in 
          order to impose the upper term, to find facts that were not 
          elements of the offense found true by the jury, and because 
          the court could find those facts by a preponderance of the 
          evidence as opposed to the higher standard of beyond a 
          reasonable doubt, the DSL did exactly what was forbidden 
          under Apprendi, namely, it "allows a judge to impose a 
          sentence above the statutory maximum based on a fact, other 
          than a prior conviction, not found by a jury or admitted by 
          the defendant."  (Apprendi, supra, 530 U.S. 466.)  "This 
          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  , 
          2007 U.S. LEXIS 1324 (U.S. 2007).)

          In sum, the Court held: "Because circumstances in 
          aggravation are found by the judge, not the jury, and need 
          only be established by a preponderance of the evidence, not 
          beyond a reasonable doubt, . . . the DSL violates 
          Apprendi's bright-line rule:  Except for a prior 
          conviction, 'any fact that increases the penalty for a 
          crime beyond the prescribed statutory maximum must be 
          submitted to a jury, and proved beyond a reasonable 
          doubt.'"  (  Cunningham v. California  , 2007 U.S. LEXIS 1324 
          (U.S. 2007), citation omitted.)

           SB 40 (Romero) Amended California's DSL to Satisfy 
          Constitutional Requirements  .  While the Supreme Court, in 
          its Cunningham decision, found that California's DSL 
          violates the Sixth Amendment, the Court also provided clear 
          direction as to what steps California's Legislature could 
          take to address the DSL's Constitutional infirmities.

              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 







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              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 v. 
              California, 2007 U.S. LEXIS 1324 (U.S. 2007), 
              citations and footnotes omitted.)

          Because, as the Court stated in Blakely, "The relevant 
          statutory maximum, is not the maximum sentence a judge may 
          impose after finding additional facts, but the maximum he 
          may impose without any additional findingsİ,]" and, 
          because, prior to SB 40, under California's DSL, a judge 
          could only impose the upper term after making additional 
          findings of fact, the Court in Cunningham found that, 
          absent any amendment along the lines stated above, the 
          statutory maximum a judge would be authorized to impose in 
          California is the middle term.  (  Cunningham v. California  , 
          2007 U.S. LEXIS 1324 (U.S. 2007).

          SB 40 amended California's DSL to give judges the 
          discretion to impose the lower, middle, or upper term 
          without the need for additional fact-finding.  In addition, 
          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.

           FISCAL EFFECT  :    Appropriation:  No   Fiscal Com.:  Yes   
          Local:  No

          According to the Senate Appropriations Committee analysis:

                          Fiscal Impact (in thousands)








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           Major Provisions                2011-12     2012-13    
          2013-14   Fund  

          Base sentence discretionUnknown; potentially major costs or 
          savings    General

          Enhancement discretionUnknown; potentially major costs or 
          savings    General

           SUPPORT  :   (Verified  5/26/11)


          Los Angeles County District Attorney (source)
          California District Attorneys Association
          California State Sheriffs Association
          Peace Officers Research Association of California 

           ARGUMENTS IN SUPPORT  :    According to the author's office, 
          in 2007, the United States Supreme Court held that 
          California's determinate sentencing law violated a 
          defendant's right to a jury trial because the judge was 
          required to make factual findings in order to justify 
          imposing the maximum term of a sentencing triad.  
           Cunningham v. California  (2007) 549 US 270.  The Supreme 
          Court suggested that this 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 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. SB 
          40's approached was embraced by the  California Supreme 
          Court in People v. Sandoval  (2007) 41 Cal 4th 825, 843-852. 
          SB 150 (Wright) 2009 extended this constitutional fix to 
          sentence enhancements. 

                 SB 576 would extend the sunset provision for SB 40 
               & SB 150 from January 1, 2012 to January 16, 2016.

                 There are no other changes to the laws other than 
               the extension of the sunset provision.

          The Los Angeles District Attorney's office, which is the 







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          sponsor of this bill, states, "California's current 
          sentencing procedures were established by Senate Bill 40 
          (Romero) of 2001 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 the 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 either by providing for a jury trial on the 
          sentencing issue or by giving judges the discretion to 
          impose the higher prison term without additional findings 
                                                                of fact.

          "SB 40 and SB 150 corrected the constitutional problem by 
          giving judge's discretion to impose a minimum, medium, or 
          maximum prison term, without additional factual findings.  
          The approach to sentencing established by this legislation 
          was accepted and embraced by the California Supreme Court 
          in People v. Sandoval (2007) 41 Cal.4th 843-52.

          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 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.

          SB 576 simply maintains the current system by extending the 
          sunset on SB 40 (Romero) and SB 150 (Wright) to January 1, 
          2016."


          RJG:do  9/9/11   Senate Floor Analyses 







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                         SUPPORT/OPPOSITION:  SEE ABOVE

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