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 ÝYamada], 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, "Ýt]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, "Ýc]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 ÝCalifornia'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 findingsÝ,]" 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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