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) Page 1 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) Page 2 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 SB 463 (Pavley) Page 3 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.