BILL ANALYSIS                                                                                                                                                                                                    Ó







                      SENATE COMMITTEE ON PUBLIC SAFETY
                            Senator Loni Hancock, Chair              S
                             2013-2014 Regular Session               B

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          SB 463 (Pavley)                                             
          As Introduced February 21, 2013
          Hearing date:  April 2, 2013
          Penal Code
          JM:mc

                              CHOICE OF SENTENCING TERM  

                                       HISTORY

          Source:  Los Angeles County District Attorney

          Prior Legislation: SB 576 (Calderon) - Ch. 361, Stats. 2011
                       AB 2263 (Yamada) - Ch. 256, Stats. 2010 
                       SB 150 (Wright) - Ch. 171, Stats. 2009
                       SB 1701 (Romero) - Ch. 416, Stats. 2008
                       SB 1342 (Cogdill) - died in Senate Public Safety;  
          2008
                       SB 40 (Romero) - Ch. 3, Stats. 2007

          Support: California District Attorneys Association; Crime  
                   Victims United of California; California State  
                   Sheriffs' Association

          Opposition:California Attorneys for Criminal Justice 




                                         KEY ISSUE
           
          SHOULD THE SUNSET DATE ON SPECIFIED SENTENCING PROVISIONS BE  
          EXTENDED FROM JANUARY 1, 2014, TO JANUARY 1, 2017, ALLOWING COURTS  




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          TO SELECT A LOWER, MIDDLE OR UPPER TERM FOR BOTH BASE TERM SENTENCES  
          AND ENHANCEMENTS BY EXERCISE OF THE COURT'S DISCRETION?




                                       PURPOSE

          The purpose of this bill is to extend the sunset provisions on  
          specified sentencing provisions from January 1, 2014 to January  
          1, 2017.

           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.  The provision  
          concerning the authority of the court to choose one of three  
          prescribed sentencing terms upon sunsets on January 1, 2014.   
          (Pen. Code § 1170(b).)

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





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                 The adoption of rules providing criteria for the  
               consideration of the trial judge at the time of sentencing  
               regarding the court's decision to:

                  o         grant or deny probation; 
                  o         impose the lower, middle, or upper prison  
                    term; 
                  o         impose concurrent or consecutive sentences;  
                    and
                  o         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,  
          2014.  (See Comment 2, infra.)  (Pen. Code § 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,  




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               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  
               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 (2005) 35  
          Cal.4th 1238, California's determinate sentencing law prior to  
          the enactment of SB 40 (Romero) in 2007 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) 549 U.S. 270.)

           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, supra,  
          549 U.S. 270 - Decision Syllabus.)

           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.  (SB 40 (Romero) - Ch. 3, Stats. 2007.)  




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           Existing law  includes the following legislative findings that  
          were adopted as part of SB 40 (2007):

               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 ?  It  
               is further the intent of the Legislature to maintain  
               stability in California's criminal justice system  
               while the 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 its  
          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, 2014.  

           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), Ch. 171, Stats. 2009; Penal Code §§ 186.22,  
          186.33, 12021.5, 12022.2, 12022.3, 12022.4.)  SB 150 also  
          included a "sunset" provision, declaring that its provisions  
          would remain in effect only until January 1, 2011, unless a  
          later enacted statute deletes or extends that date.  In 2010  
          that sunset date was extended to January 1, 2012.  (AB 2263  
          (Yamada), Ch. 256, Stats. 2010.)  In 2011, the sunset date was  
          extended to January 1, 2014.  (SB 576 (Calderon) Ch. 361, Stats.  
          2011.)

           This bill  would extend the sunset dates in these sentencing  
          provisions to January 1, 2017.
                                          




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                    RECEIVERSHIP/OVERCROWDING CRISIS AGGRAVATION

          For the last several years, severe overcrowding in California's  
          prisons has been the focus of evolving and expensive litigation  
          relating to conditions of confinement.  On May 23, 2011, the  
          United States Supreme Court ordered California to reduce its  
          prison population to 137.5 percent of design capacity within two  
          years from the date of its ruling, subject to the right of the  
          state to seek modifications in appropriate circumstances.  

          Beginning in early 2007, Senate leadership initiated a policy to  
          hold legislative proposals which could further aggravate the  
          prison overcrowding crisis through new or expanded felony  
          prosecutions.  Under the resulting policy known as "ROCA" (which  
          stands for "Receivership/ Overcrowding Crisis Aggravation"), the  
          Committee held measures which created a new felony, expanded the  
          scope or penalty of an existing felony, or otherwise increased  
          the application of a felony in a manner which could exacerbate  
          the prison overcrowding crisis.  Under these principles, ROCA  
          was applied as a content-neutral, provisional measure necessary  
          to ensure that the Legislature did not erode progress towards  
          reducing prison overcrowding by passing legislation which would  
          increase the prison population.  ROCA necessitated many hard and  
          difficult decisions for the Committee.

          In January of 2013, just over a year after the enactment of the  
          historic Public Safety Realignment Act of 2011, the State of  
          California filed court documents seeking to vacate or modify the  
          federal court order to reduce the state's prison population to  
          137.5 percent of design capacity.  The State submitted in part  
          that the, ". . .  population in the State's 33 prisons has been  
          reduced by over 24,000 inmates since October 2011 when public  
          safety realignment went into effect, by more than 36,000 inmates  
          compared to the 2008 population . . . , and by nearly 42,000  
          inmates since 2006 . . . ."  Plaintiffs, who oppose the state's  
          motion, argue in part that, "California prisons, which currently  
          average 150% of capacity, and reach as high as 185% of capacity  
          at one prison, continue to deliver health care that is  




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          constitutionally deficient."  

          In an order dated January 29, 2013, the federal court granted  
          the state a six-month extension to achieve the 137.5 % prisoner  
          population cap by December 31st of this year.  

          The ongoing litigation indicates that prison capacity and  
          related issues concerning conditions of confinement remain  
          unsettled.  However, in light of the real gains in reducing the  
          prison population that have been made, although even greater  
          reductions are required by the court, the Committee will review  
          each ROCA bill with more flexible consideration.  The following  
          questions will inform this consideration:

                 whether a measure erodes realignment;
                 whether a measure addresses a crime which is directly  
               dangerous to the physical safety of others for which there  
               is no other reasonably appropriate sanction; 
                 whether a bill corrects a constitutional infirmity or  
               legislative drafting error; whether a measure proposes  
               penalties which are proportionate, and cannot be achieved  
               through any other reasonably appropriate remedy; and
                 whether a bill addresses a major area of public safety  
               or criminal activity for which there is no other  
               reasonable, appropriate remedy.
                                          
          
                                      COMMENTS

          1.  Need for This Bill  

          According to the author:

               SB 463 continues our state's sentencing procedures  
               that give judges the right to impose a minimum,  
               medium, or maximum term, without additional findings  
               of fact.  California's current determinant sentencing  
               law works well and is fair to defendants.  According  
               to the Department of Corrections and Rehabilitations  




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               Report on New Prison Admissions, in the five years  
               since Senate Bill 40 (Romero) was enacted, judges have  
               given minimum or medium terms in over 83% of all  
               cases.  Maximum terms have been ordered in only 16.9  
               percent of cases.

               California provides for a jury trial to determine if a  
               defendant is guilty or not guilty of the crime, but  
               relies upon the sound discretion of the judge to  
               determine an appropriate prison sentence.  This system  
               is not only fair, but it saves money as a jury trial  
               for sentencing would require the hiring of additional  
               prosecutors, public defenders and judges.  California  
               cannot afford this alternative at a time when  
               courthouses are closing and judicial budgets are so  
               severely strained.    

          2.  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."   
          (Pen. Code § 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.   
          (Pen. Code § 1170.3.)  According to the Rules of Court  
          established by the Judicial Council prior to SB 40, in  
          sentencing a defendant under the DSL, "[t]he middle term must be  
          selected unless imposition of the upper or lower term is  
          justified by circumstances in aggravation or mitigation."  (Cal.  
          Rules of Court, Rule 4.420(a).)





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          Prior to SB 40, the Rules of Court, Rule 4.420(b) further  
          required that, "[c]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, supra,  
          549 U.S. 270, 274-275, citing Apprendi v. New Jersey, (2000) 530  
          U.S. 466; Ring v. Arizona (2002) 536 U.S. 584; Blakely v.  
          Washington (2004) 542 U.S. 296; and United States v. Booker  
          (2005) 543 U.S. 220.)  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, 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 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, supra, 549 U.S. 270, 279.)  
           Because, prior to SB 40, California's DSL required the judge,  




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          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,  
          supra, 549 U.S. 270, 281.)

          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, supra, 549 U.S. 270,  
          288-289, citation omitted.)

          3.  SB 40 (2007) 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 [California's] court.  We note that  
               several States have modified their systems in the  
               wake of Apprendi and Blakely to retain  




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               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, supra, 549 U.S. 270, 293-294,  
               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 findings[,]" 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, supra, 549 U.S. 270.)

          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.







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          4.  Sentence Enhancements Containing Three Possible Terms  
           
           Most sentence enhancements provide for a single specific term of  
          years.  (See e.g., Penal Code § 667(a) - 5 years for each prior  
          serious felony conviction.)  Some sentence enhancements,  
          however, like base terms, provide that the court must select one  
          of three possible terms, a lower, middle or upper term.  (See  
          e.g. Penal Code § 12022.5(a), imposing a sentence enhancement of  
          3, 4 or 10 years for personally using a firearm in the  
          commission of a felony.)

          Section 1170.1(b) of the Penal Code instructs sentencing judges  
          how to impose sentence enhancements where there is a choice of  
          terms, "If an enhancement is punishable by one of three terms,  
          the court shall impose the middle term unless there are  
          circumstances in aggravation or mitigation, and state the  
          reasons for its sentencing choice, other than the middle term,  
          on the record at the time of sentencing."  Although in  
          Cunningham, the Court found that sentence enhancements, per se,  
          in California, did not violate the right to have a jury decide  
          all facts that could increase the sentence, the Court did not  
          address the specific issue of those enhancements that carry a  
          choice of terms.  (See Cunningham v. California, supra, 549 U.S.  
          270.)  

          Since the enactment of SB 40, the California Court of Appeal has  
          found that section 1170.1 "suffers from the identical  
          constitutional infirmities identified by the United States  
          Supreme Court in Cunningham, supra, 549 U.S. 270, and is  
          similarly unconstitutional.  The Legislature has taken no step  
          to amend this provision to render it compliant with the Sixth  
          Amendment . . ."  People v. Lincoln (2007) 157 Cal. App. 4th  
          196, 205.  The enactment of SB 150 (Wright), Ch. 171, Stats. of  
          2009, did just that.  SB 150 applied the same "fix" to sentence  
          enhancement triads that SB 40 applied to the base term triads:   
          It authorized the court to impose any of the three terms without  
          making any additional factual findings.  This approach was  
          expressly approved by the California Supreme Court in People v.  
          Sandoval (2007 41 Cal.4th 825, 844-845 (2007).)




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          5.  Sunset Provisions in Prior Bills  

          As described in Comment 3 above, SB 40, by its own terms, was  
          intended to maintain stability in California's criminal justice  
          system while the broader sentencing policy issues in California are  
          being reviewed.  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, Proclamation by the Governor of the State of  
          California, October 4, 2006. http://gov.ca.gov/index.php  
          ?/proclamation/4278/.)  

          The provisions of SB 40 concerning imposition of the base term for  
          the crime of conviction originally were due to sunset on January 1,  
          2009, but were later extended to January 1, 2011, in SB 1701  
          (Romero) - Ch. 416, Stats. 2008.  SB 150 (Wright), Ch. 171, Stats.  
          2009, which authorized courts to impose any term where a sentence  
          enhancement included a penalty triad, also included a sunset date  
          of January 1, 2011.  In 2011, the Legislature extended the sunset  
          provisions concerning both base term and enhancement terms from  
          January 1, 2011, to January 1, 2012.  (AB 2263 (Yamada), Ch. 256,  
          Stats. 2010.)  SB 576 (Calderon), Ch. 361, Stats. 2011, extended  
          the sunset on these sentencing provisions to January 2, 2014.  This  
          bill would extend those sunset dates to January 2017.


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