BILL ANALYSIS Ó
SB 463
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Date of Hearing: June 25, 2013
Counsel: Sandy Uribe
ASSEMBLY COMMITTEE ON PUBLIC SAFETY
Tom Ammiano, Chair
SB 463 (Pavley) - As Introduced: February 21, 2013
SUMMARY : Extends the sunset date from January 1, 2014 to
January 1, 2017 for provisions of law which provide that the
court shall, in its discretion, impose the term or enhancement
that best serves the interest of justice, as required by SB 40
(Romero), Chapter 40, Statutes of 2007; SB 150 (Wright), Chapter
171, Statutes of 2009; and Cunningham vs. California (2007) 549
U.S. 270.
EXISTING LAW :
1)Declares that the purpose of imprisonment for crime is
punishment; that this purpose is best served by terms
proportionate to the seriousness of the offense with provision
for uniformity in the sentences of offenders committing the
same offense under similar circumstances; and that the
elimination of disparity, and the provision of uniformity, of
sentences can best be achieved by determinate sentences fixed
by statute in proportion to the seriousness of the offense, as
determined by the Legislature, to be imposed by the court with
specified discretion. [Penal Code Section 1170(a)(1).]
2)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. [Penal Code Section 1170(b).]
3)Provides that when a sentencing enhancement specifies three
possible terms, the choice of the appropriate term shall rest
within the sound discretion of the court. [Penal Code Section
1170.1(d).]
4)Provides that sentencing choices requiring a statement of a
reason include "[s]electing one of the three authorized prison
terms referred to in section 1170(b) for either an offense or
an enhancement." [California Rules of Court, Rule
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4.406(b)(4).]
5)Requires the sentencing judge to consider relevant criteria
enumerated in the Rules of Court. (California Rules of Court,
Rule 4.409.)
6)Provides that, in exercising discretion to select one of the
three authorized prison terms referred to in Penal Code
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,
and any evidence introduced at the sentencing hearing."
[California Rules of Court, Rule 4.420(b).]
7)Prohibits the sentencing court from using a fact charged and
found as an enhancement as a reason for imposing the upper
term unless the court exercises its discretion to strike the
punishment for the enhancement. [California Rules of Court,
Rule 4.420(c).]
8)Prohibits the sentencing court from using a fact that is an
element of the crime to impose a greater term. [California
Rules of Court, Rule 4.420(d).]
9)Enumerates circumstances in aggravation, relating both to the
crime and to the defendant, as specified. (California Rules of
Court, Rule 4.421.)
10)Enumerates circumstances in mitigation, relating both to the
crime and to the defendant, as specified. (California Rules
of Court, Rule 4.423.)
FISCAL EFFECT : Unknown
COMMENTS :
1)Author's Statement : According to the author, "SB 463
continues our state's sentencing procedures which 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
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Rehabilitations 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 system. This system is not only fair, but
saves money as an additional jury trial for sentencing would
require the hiring of more prosecutors, public defenders and
judges. Our courts have had four successive years of
reductions; we have 'closed' signs on courtrooms and clerks
offices in 24 counties around the state. In LA County alone,
8 courthouses have closed completely, including Malibu in my
district. California can ill afford this alternative at a
time when judicial budgets are so severely strained."
2)Background: The Sixth Amendment right to a jury applies to
any factual finding, other than that of a prior conviction,
necessary to warrant any sentence beyond the presumptive
maximum. [Apprendi v. New Jersey (2000) 530 U.S. 466, 490;
Blakely v. Washington (2004) 524 U.S. 296, 301, 303-04.]
In Cunningham v. California (2007) 549 U.S. 270, the United
States Supreme Court held California's Determinate Sentencing
Law (DSL) violated a defendant's right to trial by jury by
placing sentence-elevating fact finding within the judge's
province. (Id. at p. 274.) The DSL authorized the court to
increase the defendant's sentence by finding facts not
reflected in the jury verdict. Specifically, the trial judge
could find factors in aggravation by a preponderance of
evidence to increase the offender's sentence from the
presumptive middle term to the upper term and, as such, was
constitutionally flawed. The Court stated, "Because the DSL
authorizes the judge, not the jury, to find the facts
permitting an upper term sentence, the sentence cannot
withstand measurement against our Sixth Amendment precedent."
(Id. at p. 293.)
The Supreme Court provided direction as to what steps the
Legislature could take to address the constitutional
infirmities of the DSL:
"As to the adjustment of California's sentencing system in light
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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 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, supra, 549 U.S. at pp. 293-294.)
Following Cunningham, the Legislature amended the DSL,
specifically Penal Code Sections 1170 and 1170.1, to make the
choice of lower, middle, or upper prison term one within the
sound discretion of the court. [See SB 40 (Romero), Chapter
3, Statutes of 2007.] This approach was embraced by the
California Supreme Court in People v. Sandoval (2007) 41
Cal.4th 825, 843-852. The new procedure removes the mandatory
middle term and the requirement of weighing aggravation
against mitigation before imposition of the upper term. Now,
the sentencing court is permitted to impose any of the three
terms in its discretion, and need only state reasons for the
decision so that it will be subject to appellate review for
abuse of discretion. (Id. at pp. 843, 847.)
3)Sunset Provision : 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. Thus,
SB 40, by its own terms, was intended to be a temporary
measure. The provisions of SB 40 originally were due to
sunset on January 1, 2009, but were later extended to January
1, 2011. Since then, the Legislature has extended the sunset
provisions several times. This bill extends those sunset
dates to January 1, 2017.
4)Is the Current Method Still Constitutionally Infirm ? The
United States Supreme 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
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judge, and established beyond a reasonable doubt, not merely
by a preponderance of the evidence." (Cunningham v.
California, supra, 549 U.S. at 281.) The Court has with
increasing frequency in recent years insisted on the jury's
essential role in resolving factual issues related to
sentencing. [See e.g. Southern Union Co. v. United States
(2012) 132 S.Ct. 2344 (The rule of Apprendi applies to the
imposition of criminal fines.).] In fact, on June 17, 2013,
the Court once again considered the scope of the Sixth
Amendment in the sentencing context in a case involving
mandatory-minimum sentencing schemes, and held that any fact
that increases the mandatory minimum is an "element" that must
be submitted to the jury. [See Alleyne v. United States
(2013) __ U.S. __ (2013 U.S. LEXIS 4543), overruling Harris v.
United States (2002) 536 U.S. 545.] The Court explained that
the logic of Apprendi requires a jury to find all facts that
fix the penalty range of a crime. The mandatory minimum is
just as important to the statutory range as is the statutory
maximum. ().
One of the most important sentencing labels that must be
scrutinized in assessing a sentencing determination for
Apprendi/Blakely error is "judicial discretion." The Supreme
Court stated in Apprendi that it was not eliminating judicial
discretion over sentencing. (Apprendi, supra, 530 U.S. at p.
482.) However, in Blakely, the Court also held that the
exercise of judicial discretion is unconstitutional if it
relies on a fact not found true by the jury, in whose absence
the state's sentencing laws would require a lower sentence.
(Blakely, supra, 124 S.Ct. at pp. 2537-2538.) Simply because
a state's sentencing laws say that they are giving a judge
discretion, even broad discretion, to make a particular
determination affecting the defendant's sentence does not mean
that the exercise of that discretion is immune from an
Apprendi/Blakely challenge. Unless the state has given the
sentencing court unfettered discretion to do whatever it wants
to in making a particular determination that affects the
defendant's sentence, the exercise of that discretion will
potentially be susceptible to such a challenge.
Because Penal Code Section 1170 continues to require judicial
findings as a predicate to the imposition of an aggravated
term, it arguably still violates the Sixth Amendment. While
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the trial court "will not be required to cite 'facts' that
support its decision or to weigh aggravating and mitigating
circumstances" [People v. Sandoval, supra, 41 Cal.4th at pp.
846-847, citing Section 1170, subd. (c)], as adopted by the
California Supreme Court, Penal Code Section 1170 requires the
judge to enter "reasons" supporting the exercise of his or her
sentencing discretion on the record. [Id. at p. 844; see also
Penal Code Section 1170(b).] Those reasons remain governed by
the California Rules of Court. [People v. Sandoval, supra, 41
Cal.4th at 844; Penal Code Section 1170.3(a)(2).] And the
Rules of Court, which lay out the permissible bases for trial
courts to impose an upper or lower term, have not changed.
Rule 4.421, listing circumstances in aggravation, distinguishes
between factors relating to the crime and factors relating to
the defendant. The aggravating factors relating to the crime
are: "(1) The crime involved great violence, great bodily
harm, threat of great bodily harm, or other acts disclosing a
high degree of cruelty, viciousness, or callousness; (2) The
defendant was armed with or used a weapon at the time of the
commission of the crime; (3) The victim was particularly
vulnerable; (4) The defendant induced others to participate in
the commission of the crime or occupied a position of
leadership or dominance of other participants in its
commission; (5) The defendant induced a minor to commit or
assist in the commission of the crime; (6) The defendant
threatened witnesses, unlawfully prevented or dissuaded
witnesses from testifying, suborned perjury, or in any other
way illegally interfered with the judicial process; (7) The
defendant was convicted of other crimes for which consecutive
sentences could have been imposed but for which concurrent
sentences are being imposed; (8) The manner in which the crime
was carried out indicates planning, sophistication, or
professionalism; (9) The crime involved an attempted or actual
taking or damage of great monetary value; (10) The crime
involved a large quantity of contraband; and (11) The
defendant took advantage of a position of trust or confidence
to commit the offense."
Many of these offense factors involve conduct that is the same
conduct proscribed by various sentence enhancements which must
be charged and proven to a jury. For example, that the crime
involved great violence or bodily harm is substantially
similar to the great bodily injury enhancement (Penal Code
Section 12022.7); that the defendant was armed with or used a
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weapon encompasses the same conduct as an arming enhancement
(Penal Code Section 12022); that the crime involved a taking
or damage of great monetary value mirrors the value-of-loss
enhancement (Penal Code Section 12022.6); and that the crime
involved a large quantity of contraband is akin to the weight
enhancement for controlled substance violations. (Health &
Safety Code Section 11370.4.)
Moreover, under the Rules of Court, it remains the case that
"[a] fact that is an element of the crime may not be used to
impose a greater term." [Cal. Rules of Court, Rule 4.420(d).]
Similarly, Penal Code Section 1170(b) continues to provide
that "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."
It really should not matter that the factors outlined in the
Rules of Court are now called "reasons" rather than "facts."
"If a State makes an increase in a defendant's authorized
punishment contingent on the finding of a fact, that fact - no
matter how the State labels it - must be found by a jury
beyond a reasonable doubt." . . . "[T]he characterization of
a fact or circumstance as an 'element' or a 'sentencing
factor' is not determinative of the question 'who decides,'
judge or jury," . . . . (United States v. Booker, supra, 543
U.S. at 231.) Since under reformed Penal Code Section 1170,
it is still the case that an upper-term sentence must be based
on factors in the Rules of Court, arguably the sentencing
scheme still violates a defendant's Sixth Amendment rights, at
least as to offense-based factors relied upon to impose an
upper-term sentence.
5)Argument in Support : According to the San Diego County
District Attorney , "As you know, Senate Bill 463 is a measure
that would extend the sunset date on specified sentencing
provisions from January 1, 2014 to January 1, 2017. This bill
would continue our state's sentencing procedures that give
judges the right to impose a minimum, medium, or maximum term,
without additional findings of fact. Additionally, it would
extend to January 1, 2017, the provisions of law that provide
that the court shall, in its discretion, impose the term or
enhancement that best serves the interests of justice.
"It is important to note that California's current determinant
sentencing law works well and is fair to defendants.
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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."
The California Judges Association writes, "Without SB 463,
current law would sunset in January, 2014 and revert back to
the requirement for a jury trial on sentencing whenever an
upper term sentence is sought and requiring the court to
impose the mid-term unless there are circumstances in
mitigation or aggravation. Under SB 463, we can avoid costly
and unnecessary alternatives at a time when the courts are
already constrained by staff reductions and court closures.
SB 463 allows the court to continue to impose prison terms or
enhancements that best serve the interests of justice."
6)Argument in Opposition : The California Attorneys for Criminal
Justice argue, "This bill continues a push towards keeping
persons in State prison rather than following the State's plan
for criminal justice realignment. The stated goal of
realignment was to reduce spending on incarceration and reduce
recidivism. The proposed legislation gives the court a three
year extension in its discretion to impose heavier punishments
while keeping more people in State prison. Not only is the
extension unnecessary, it also lacks clarity in giving the
court absolute discretion to impose an enhancement that 'best
serves the interest of justice.'"
7)Related Legislation : AB 765 (Ammiano) prohibits imposition of
the upper term of imprisonment unless aggravating factors are
found to be true by the finder of fact. AB 765 was held on
the Assembly Appropriations Committee's Suspense File.
8)Prior Legislation :
a) SB 40 (Romero), Chapter 3, Statutes of 2007, amended
California's DSL to eliminate the presumption for the
middle term and to state that where a court may impose a
lower, middle or upper term in sentencing a defendant, the
choice of appropriate term shall be left to the discretion
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of the court.
b) SB 1701 (Romero), Chapter 416, Statutes of 2008,
extended to January1, 2011, the provisions of SB 40 which
were originally due to sunset on January 1, 2009.
c) SB 150 (Wright), Chapter 171, Statutes of 2009,
eliminated the presumption of the middle term relating to
sentencing enhancements found in Penal Code Section
1170.1(d).
d) AB 2263 (Yamada), Chapter 256, Statutes of 2010,
extended to January 1, 2012 provisions of law that provide
that the court shall, in its discretion, impose the term or
enhancement that best serves the interest of justice.
e) SB 576 (Calderon), Chapter 361, Statutes of 2011,
extended to January 1, 2014 provisions of law that provide
that the court shall, in its discretion, impose the term or
enhancement that best serves the interest of justice.
REGISTERED SUPPORT / OPPOSITION :
Support
Los Angeles District Attorney's Office (Sponsor)
California District Attorneys Association
California Judges Association
California State Sheriffs' Association
Crime Victims Action Alliance
Crime Victims United of California
San Diego County District Attorney
Opposition
California Attorneys for Criminal Justice
Analysis Prepared by : Sandy Uribe / PUB. S. / (916) 319-3744