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