BILL ANALYSIS Ó SENATE COMMITTEE ON PUBLIC SAFETY Senator Loni Hancock, Chair S 2013-2014 Regular Session B 4 6 3 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 (More) SB 463 (Pavley) Page 2 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: (More) SB 463 (Pavley) Page 3 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, (More) SB 463 (Pavley) Page 4 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.) (More) SB 463 (Pavley) Page 5 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. (More) SB 463 (Pavley) Page 6 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 (More) SB 463 (Pavley) Page 7 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 (More) SB 463 (Pavley) Page 8 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).) (More) SB 463 (Pavley) Page 9 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, (More) SB 463 (Pavley) Page 10 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 (More) SB 463 (Pavley) Page 11 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. (More) 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).) (More) SB 463 (Pavley) Page 13 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. ***************