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.
SB 463 (Pavley)
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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.
SB 463 (Pavley)
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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.