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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