BILL ANALYSIS                                                                                                                                                                                                    Ó




                   Senate Appropriations Committee Fiscal Summary
                            Senator Kevin de León, Chair


          SB 463 (Pavley) - Sentencing.
          
          Amended: As Introduced          Policy Vote: Public Safety 7-0
          Urgency: No                     Mandate: No
          Hearing Date: April 15, 2013                            
          Consultant: Jolie Onodera       
          
          This bill meets the criteria for referral to the Suspense File.
          
          
          Bill Summary: SB 463 would extend the sunset date on specified  
          sentencing provisions from January 1, 2014, to January 1, 2017,  
          allowing courts to select a lower, middle, or upper term for  
          both base term sentences and enhancements by exercise of the  
          court's discretion.

          Fiscal Impact: Potentially major costs or savings to the extent  
          the extended sentencing provisions result in longer or shorter  
          prison terms than would have occurred under the presumptive  
          middle term. A one percent increase in upper term sentences,  
          assuming an additional two years per upper term sentence, would  
          result in additional costs in excess of several million dollars  
          (General Fund). The additional costs would likely not be  
          incurred until after the middle term is served of the sentence,  
          the enhancement, or both.

          Background: California's existing sentencing procedures were  
          initially established by SB 40 (Romero) Chapter 3/2007 and SB  
          150 (Wright) Chapter 171/2009, that sought to conform the  
          state's determinate sentencing laws to the findings in  
          Cunningham v. California (2007) 549 U.S. 270. The Cunningham  
          decision found a portion of California's determinate sentencing  
          laws unconstitutional on the grounds that they violated an  
          individual's right to a jury trial. 

          The former version of the state's basic determinate sentencing  
          statute provided that, for crimes punishable by three possible  
          terms, the court had to impose the middle term of imprisonment  
          unless it found circumstances in aggravation or mitigation. If  
          the court found that there were aggravating or mitigating  
          circumstances, it could impose an upper or lower term. 









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          However, in 2007, the U.S. Supreme Court held upper term  
          sentencing, under California's determinate sentencing law,  
          invalid under the Sixth Amendment. In Blakely v. Washington  
          (2004) 542 U.S. 296, the U.S. Supreme Court held in order to  
          comport  with the Sixth Amendment, any fact (other than a prior  
          conviction) that exposes a defendant to a sentence beyond the  
          relevant statutory maximum must be found by a jury beyond a  
          reasonable doubt or admitted by the defendant. Subsequently, in  
          the Cunningham decision, the U.S. Supreme Court held that  
          California's determinate sentencing law violated Blakely because  
          the middle term was the statutory maximum for the crime, but the  
          law allowed the court to impose the upper term based on  
          circumstances in aggravation found by the court by a  
          preponderance of the evidence.  


          In light of Cunningham, the Legislature amended Penal Code §  
          1170(b) to fix the constitutional defect inherent in the statute  
          with regard to the term imposed for the crime. Accordingly,  
          under current law, the court is afforded discretion to choose  
          the appropriate term, based on the interest of justice, from the  
          three-term range provided as punishment for the crime. Since the  
          middle term is no longer the presumptive term of imprisonment,  
          the defendant has no right to a jury trial, with proof beyond a  
          reasonable doubt, on circumstances in aggravation that would  
          support the imposition of the upper term.
           
           Chapter 171/2009 addressed the same constitutional issue for  
          sentence enhancements, some of which are punishable by three  
          possible terms. It deleted the requirement that the court impose  
          the middle term unless it found circumstances in aggravation or  
          mitigation and instead provided that the choice of term will be  
          within the court's discretion when a sentence enhancement called  
          for the court to select either a lower, middle, or upper term.  
          This approach to sentencing was expressly approved by the  
          California Supreme Court in People v. Sandoval (2007) Cal.4th  
          825, 844-845.

          Proposed Law: This bill would extend the sunset on specified  
          sentencing provisions from January 1, 2014, to January 1, 2017,  
          allowing courts to select a lower, middle, or upper term for  
          both base term sentences and enhancements by exercise of the  
          court's discretion. 









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          Prior Legislation: SB 576 (Calderon) Chapter 361/2011 extended  
          the sunset date on existing sentencing provisions from January  
          1, 2012, to January 1, 2014.

          AB 2263 (Yamada) Chapter 256/2010 extended the sunset date on  
          base term and enhancement sentencing provisions from January 1,  
          2011, to January 1, 2012.

          SB 150 (Wright) Chapter 171/2009 established the provisions  
          requiring the court, in its discretion, to impose the  
          enhancement that best serves the interests of justice.

          SB 1701 (Romero) Chapter 416/2008 extended the sunset date on  
          base term sentencing provisions established in SB 40 to January  
          1, 2011.

          SB 1342 (Cogdill) 2008 would have extended the sentencing  
          provisions established in SB 40 indefinitely. This bill was held  
          in the Senate Committee on Public Safety.

          SB 40 (Romero) Chapter 3/2007 established the provisions  
          requiring the court, in its discretion, to impose the base term  
          sentence that best serves the interests of justice.

          Staff Comments: The fiscal impact of extending the sentencing  
          provisions is unclear because the costs are determined by the  
          behavior and decisions of individual judges in sentencing  
          hearings. This bill poses potentially significant annual General  
          Fund costs for increased state prison terms to the extent that  
          more offenders receive aggravated base and/or enhancement terms  
          than the presumptive middle term. 

          In the absence of a sunset extension, the court would no longer  
          be able to go above the middle term of a base sentence or an  
          enhancement. By giving judges this discretion, there is a  
          potential for increased incarceration time which is a cost to  
          the General Fund in future years. 

          This bill also, however, gives judges the authority to impose  
          the lower limit of enhancement. Even a minor change in the  
          number of offenders deviating from the middle term would drive  
          significant costs or savings, given the large base of offenders.  

          Based on CDCR figures from 2006 through mid-2011, the number of  








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          upper terms per the number of determinate sentences increased  
          slightly, from about 15 percent to about 17 percent. More recent  
          data for calendar year 2012 indicates a higher percentage of  
          state prison inmates with upper terms of 21.7 percent. This  
          higher percentage likely reflects the impact of 2011 Public  
          Safety Realignment which became effective on October 1, 2011.  
          The realignment of lower level felony offenders to county  
          supervision has significantly reduced the state's prison  
          population, leaving a higher proportion of inmates convicted of  
          serious or violent felony offenses over a reduced base of  
          offenders.

          It is estimated that about 32,000 offenders will be admitted to  
          state prison in 2013-14, with approximately 23,200 offenders  
          projected to have a determinate prison sentence. A one percent  
          increase in upper term sentences represents approximately 232  
          cases. Assuming an additional two years per upper term sentence  
          would result in additional costs in excess of several million  
          dollars (General Fund). The additional costs resulting from this  
          bill would likely not be incurred until after the middle term is  
          served of the sentence, the enhancement, or both.