BILL ANALYSIS Ó SB 463 Page 1 Date of Hearing: July 3, 2013 ASSEMBLY COMMITTEE ON APPROPRIATIONS Mike Gatto, Chair SB 463 (Pavley) - As Introduced: February 21, 2013 Policy Committee: Public SafetyVote:7-0 Urgency: No State Mandated Local Program: No Reimbursable: SUMMARY This bill addresses the constitutional infirmity of the state's three-tier determinate sentencing law (DSL), pursuant to Cunningham vs. California (2007), by extending the sunset date from January 1, 2014 to January 1, 2017 on provisions of law (the Cunningham fix) that require the court to use its discretion to impose the term or enhancement that best serves the interest of justice, as required by SB 40 (Romero) and three extensions. FISCAL EFFECT Unknown annual GF increase or decrease to the extent this measure results in longer or shorter prison terms. While it is unlikely this bill will significantly alter current sentencing patterns, even a minor increase in the number of offenders deviating from the middle term drives significant costs or savings, given the large base of offenders (some 85,000 offenders received determinate prison sentences in 2011 and 2012 combined). Based on CDCR figures from 2008 through 2010, the number of upper terms per the number of determinate sentences increased slightly, from about 14% to about 17%, though in actual numbers, there were 44 fewer upward deviations in 2010 than in 2006. These figures appear to belie the contention of proponents of AB 765 that current law, which does not require that aggravating sentencing factors be pled and proved, results in significantly more upper-term sentences. COMMENTS SB 463 Page 2 1)Rationale. This bill extends the current Cunningham fix from January 2014 to January 2017. In 2007, in Cunningham vs. California, the U.S. Supreme Court held that California's DSL violated a defendant's right to a jury trial because it authorized the court to increase a defendant's sentence by finding facts not reflected in the jury verdict. Specifically, because a trial judge could find factors in aggravation, beyond a preponderance of evidence, to increase the offender's sentence from the presumptive middle term to the upper term, the scheme is constitutionally flawed. The Court suggested this problem could be corrected by either providing a jury trial on the sentencing issue or by giving judges discretion to impose the higher term without additional findings of fact. California opted for the latter solution. SB 40 (Romero), Statutes of 2007, corrected the problem by giving judges discretion to impose a minimum, medium or maximum term, without additional findings of fact. SB 150 (Wright), Statutes of 2009, applied the same solution to sentence enhancements. These bills were designed as temporary fixes to maintain stability in California's criminal justice system while broader sentencing issues in California were reviewed. The provisions of SB 40 sunset January 1, 2009, but were extended to January 1, 2011 by SB 1701 (Romero), Statutes of 2008, to January 1, 2012 by AB 2263 (Yamada) Statutes of 2010, and to January 1, 2014 by SB 576 (Calderon) Statutes of 2011. 2)California's DSL uses a triad scheme comprising a presumptive middle term, a mitigated - or lower - term, and an aggravated - or upper - term. The triad sentencing structure provides the court three sentencing options for each crime. For example, a first-degree burglary offense is punishable by a prison sentence of two, four, or six years. The upper and lower terms provided in statute can be given if circumstances concerning the crime or offender warrant more or less time in prison. In determining whether there are circumstances warranting the upper or lower term, the court may consider the record in the case, the probation officer's report, other reports, including reports received pursuant to existing law 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. The court must state for the record the SB 463 Page 3 facts and reasons for imposing an upper or lower term. 3)Support . According to the L.A. District Attorney's Office, the sponsor of this bill, "California's current sentencing procedure works well and is fair to defendants. For the past four years, judges have given minimum prison terms in 55% to 60% of all cases. Medium terms were ordered an additional 25% to 28% of the time. Judges ordered maximum prison terms in only 12% to 17% of all cases. "With the exception of death penalty cases, California has always provided for a jury trial to determine if a defendant is guilty or not guilty of a crime. Sentencing decisions have always been made by judges. This system is not only fair but it saves money as a separate jury trial for sentencing would require that we hire additional prosecutors, public defenders and judges. California cannot afford that alternative at a time when we are struggling to pay for basic services." 1)Opposition . According to the California Attorneys for Criminal Justice (CACJ), "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.'" 1)Related Legislation : AB 765 (Ammiano), sponsored by CACJ, as introduced required aggravating sentencing factors to be pled and proved. AB 765 was held on this committee's Suspense File. Analysis Prepared by : Geoff Long / APPR. / (916) 319-2081